In terms of assessing a minor child’s own contributions to an accident or injury, children aged five or younger cannot, as a matter of law, be found negligent. Older children will be held to a standard of care of children of a similar age. Thus, children are not normally held to adult standards of conduct but must use that degree of care ordinarily exercised by children of like age, intelligence, and experience. This is a question of fact, and a fact finder (judge or jury) can help determine this point of issue. If a child is found to be partly negligent for causing his or her own injury, the award will be reduced by a percentage, or apportionment, of his or her own negligence. For instance, if a jury awards a child $100,000 for his or her injury, but found the child 75 percent responsible, the award will be reduced to $25,000.
California Statute of Limitations in Injury Cases Involving Minor Children
Every parent should be aware that under California law, the statute of limitations (i.e., the time within which an injury case must be settled or a lawsuit be filed in an appropriate court of law) is generally two years from the date of accident63 against a private party. If this is not accomplished, then an injured party forever loses his or her legal right to recover damages for his or her pain and suffering and damages from an at-fault party or entity. However, for minor children, the two- year statute of limitations is tolled until the minor child reaches his or her eighteenth birthday. This means the two years do not begin to elapse until the minor child’s eighteenth birthday is reached. Simply add two years to the eighteenth birth date of the injured child to figure out the statutory deadline.
However, there are notable exceptions to this California law. Most injury claims statute arise on the date of injury, but for some injury claims, they only arise upon discovery. For example, if the injury was the result of a medical malpractice claim, then the California statute of limitations is different. For a minor child injured as a result of medical malpractice, the minor’s injury claim must commence within three years of the alleged wrongful act (which could be sooner than the actual date of injury).
If you are seeking medical malpractice for the injury of a child against a California county, then the action against the county accrues only when the child’s parent or guardian knew or reasonably should have known that a wrongful act (e.g., negligent medical care) caused the child’s injury. Also, if you are seeking damages from a government agency, the statute of limitations is even shorter (generally six months from the date of death, or injury).
A legal action by or on behalf of a minor child in California for personal injuries sustained before or in the course of his or her birth must be commenced within six years of the date of birth. However, if the minor child was under age six at the time of the alleged wrongful act, then legal action must be commenced within three years or prior to his or eighth birthday, whichever date is later. This three-year time frame even applies to those who were minors (under eighteen years of age) at the time of the wrongful act, regardless of whether the minor has become an adult by the time the legal action commences.
★INTERESTING POINT: Therefore, for example, the “adult statute’s” one-year discovery rule (for medical malpractice claims for adults) does not apply to a claim for injuries inflicted at age seventeen, regardless of whether the minor child is an adult when the injuries are discovered.70 These different California statutory timeframes mean that if you wait too long, you will lose your legal rights as a parent to seek legal compensation for the injury of your child.
★INTERESTING POINT: Interestingly, sometimes one or both parents are injured in the same accident (such as a car accident, or other injury-producing accident), and because the statue of limitations for a minor child’s injury in California is tolled until his or her eighteenth birthday, sometimes the parent’s injury claim will move faster than the child’s injury claim. If the at-fault party is adjudicated (judged at court) as being not at fault for the accident in the parent’s lawsuit, then the minor child cannot later bring a lawsuit against the same defendant to the extent that both law suits had identical liability issues.71 This is known as “collateral estoppel.”