General Considerations in the Representation of Children in Massachusetts

Compassion and thoroughness in ensuring children are protected

At Feinberg & Alban PC, we’ve long believed — and always acted with the knowledge — that representing injured children should cause an attorney to be passionate and thorough. Passionate because children are surely the most sympathetic of victims and thorough because the attorney will have to present the facts on behalf of someone who may well be unable to speak for his or her own interests in any way.

Boston and Massachusetts put children first

In Massachusetts, many special laws have developed regarding children as victims in a personal injury case. With an eye on protecting children, our Commonwealth’s laws — and our firm’s lawyers in Boston and beyond — take specific care to ensure that children aren’t punished for being children.

• Children have a special standard of care: When judging a child plaintiff’s conduct, the standard of care is that of a reasonable person of “like age, intelligence and experience under like circumstances.” This generally means that a finding of comparative negligence on a child is not likely – a good thing.
• A parent or guardian’s negligence cannot be imputed to the child: Often defendants will try to argue — or at least suggest — that a child was not being properly supervised by the parent at the time the child suffered the accident. The law is very clear, however — the negligence of a parent or other custodian is not imputed to the child in that child’s action to recover for injury. M.G.L. c.231, s.85D. Similarly, any “prior bad acts” of the parent would, if admitted, be unfairly prejudicial against the child plaintiff, so they are not permitted to be admitted as evidence.
  • However, defendants will often consider naming the parent or guardian of the injured child as a third-party defendant. This must be dealt with but it is a different issue from the above.
• Children must wear bike helmets — but defendants cannot mention that: In Massachusetts, a child under sixteen years of age must wear a bicycle helmet. However, for purposes of a bicycle injury case, the law does not permit a defense lawyer to introduce that fact in evidence in an attempt to establish comparative negligence.
• Child trespassers have special rules: We do not have “attractive nuisance” — essentially, a “shiny object” doctrine — in Massachusetts, unlike many other jurisdictions — but we do have a statute governing trespassing children that sets out five criteria for negligence not unlike attractive nuisance. As stated above, when the injury victim is a child, that child is held to the standard of care of a child of like age, intelligence and experience.
• An uninjured child can make a claim when a parent is injured: Can a child who has not sustained a bodily injury nevertheless have a tort claim for the injury suffered by the child’s parent? The answer in Massachusetts is “yes” since 1980, when the Supreme Judicial Court decided Ferriter v. Daniel O’Connell’s Sons, Inc., recognizing the “filial needs for closeness, guidance, and nurture.”
• Extended statute of limitations in certain cases: A child reaches majority when he or she turns 18. This extends the Statute of Limitations in personal injury actions for accidents occurring prior to the child’s 18th birthday. Keep in mind, however, that there are special circumstances for medical malpractice cases and suits against municipalities and public agencies. An attorney at Feinberg & Alban PC can work with you to help you understand your rights and abilities in this situation.
• Scarring and head injuries are considered differently from adults: We’ve seen many cases involving children who have scarring and head injuries. For scarring, it is crucial to consult the appropriate experts who can determine if the scar can be remedied, when it can be remedied and how much that procedure will cost. Even if the child is very young, it is vital to obtain an opinion as to the permanence of the scar if in fact that is the case. For head injuries, the conscientious legal team at Feinberg & Alban obtains pediatric records, school records and interviews of the family — all crucial additional information in addition to the standard research performed by any attorney.
• Special rules for monetary recoveries for children: When a person under the age of 18 is injured through the fault of another person, someone, usually a parent or guardian, must act as the child’s official representative for the purposes of the lawsuit. In addition, if a monetary settlement is reached, the parties to the lawsuit must obtain court approval that the settlement is fair to the child. M.G.L. c.231, s.140C½.  The legal team at Feinberg & Alban is experienced in successfully obtaining settlements for minors and presenting the settlements to the courts for approval.
• Care and sensitivity is especially necessary: Care and sensitivity is especially necessary. Representing children and teenagers requires a special sensitivity to the particular needs of young people and their possible difficulties dealing with what has happened to them and how it will affect their lives. Feinberg & Alban is particularly aware of young people’s needs and concerns and takes them into account in handling their cases.

Attorneys representing children in Boston and throughout Massachusetts

Representing children is challenging but among the most fulfilling things a lawyer can do. If your child has been injured — or you have just reached the age of majority and believe you might have a claim — contact Boston’s Feinberg & Alban PC, serving the city of Boston and all of Massachusetts. We have the experience and the knowledge to compassionately and thoroughly represent children of all ages who have suffered any sort of injury. Contact us today or call 617-232-5950 to set up your free initial consultation.