General Considerations in the Representation of Children

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 himself/herself in any way. Special laws have developed regarding children as victims in a personal injury case. What follows is a description of just some of those legal issues.

1. The Child Plaintiff’s conduct is to be judged by the standard of a reasonable person of “like age, intelligence and experience under like circumstances.” See Restatement Second Torts Section 283A, and see Massachusetts Practice, Tort Law, Volume 37, Section 209 citing Massachusetts cases. This generally means that a finding of comparative negligence on a child is not likely - a good thing.

2. Often a Defendant will try to argue - or at least suggest - that the child was not being properly supervised by the parent at the time the child suffered the accident. However, under tort principles, there is no imputed negligence to the Child Plaintiff for the acts or omissions of the parent. The law is very clear: the negligence of a parent or other custodian is not imputed to his child in his actions to recover for injury to the person or property of an Infant, M.G.L. c. 231 §86 D. Similarly, any “prior bad acts” of the parent would, if admitted, be unfairly prejudicial against the Child Plaintiff.

Caveat: A defendant will often consider naming the parent or custodian as a third-party defendant. This must be dealt with but it is a different issue from the above.

3. In Massachusetts, a child under sixteen years of age must wear a bicycle helmet. See M.G.L. c. 85, Section 11B1/2 as amended in 2004. However, for purposes of a personal injury case, your attorney must keep in mind that the law does not permit a defense lawyer to introduce that fact in evidence in an attempt to establish comparative negligence.

4. We do not have “attractive nuisance” in Massachusetts, unlike many other jurisdictions. We do have a statute, M.G.L. c. 231 Section 85Q, governing trespassing children that sets out five criteria for negligence not unlike attractive nuisance. As stated above, the child is held to the standard of care of a child of like age, intelligence and experience.

5. 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.  See Ferriter v. Daniel O’Connell’s Sons, Inc. Mass. 507, 513-517 in which the Supreme Judicial Court recognized the “filial needs for closeness, guidance, and nurture.”

6. 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.

Caveat:  There are special circumstances for medical malpractice cases and suits against municipalities and public agencies to name a few exceptions to the general rule so do not rely on this very general statement of Massachusetts law. Consult an attorney.

7. In our firm’s collective experience, we see children who often 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, pediatric records, school records, and interviewing of the family is crucial in addition to the normal things that any conscientious lawyer would do.

In summary, representing children is challenging but among the most fulfilling things a lawyer can do.