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Child Injuries

Injuries to children are of course a very painful subject. Obviously, no one could be more precious than a child. I will never forget going into a courtroom and seeing a picture of a child in a full body cast. Thank God, the child had made a good recovery by the time of trial but if the old line “a picture is worth a thousand words” were ever true, it was certainly true there.

What about the law pertaining to children and injuries? Often the allegation will be by the insurance company that the child was negligent, or more precisely, comparatively negligent. We know that in Massachusetts if you are 51% or more negligent you do not get to recover. If you are 50% or less negligent, your recovery will be reduced by the percentage of your own negligence.

But the comparative negligence statute only tells a part of the story where kids are concerned. Actually, in that instance, the law seems more indulgent. It uses, I would say, almost a blend of subjective and objective standards. It says that the conduct of a child is to be judged by a child of like or similar age, experience, and intelligence. I think you can see a bit of the blend of both the subjective and objective. That concept, that notion of how a child’s conduct is to be judged, I submit to you, is an attempt to be more sympathetic by considering the facts relating to the particular child. We do not encounter that approach with an adult because the reasonable man standard, an obviously objective standard, is used.

Now I have seen cases, and this is a different issue pertaining to children, where the defendant will threaten to bring in as an additional defendant a mother or father as a third-party defendant. Or, perhaps this threat pertains to one who is not a parent but another person who allegedly was negligent in supervising the child. That is an unfortunate thing to face but it can backfire on the defendant. Your lawyer should not lose focus on the original defendant, the original tortfeasor, by allowing a trier of fact to be muddled and confused by this other issue. Nevertheless, the specter of “the third-partying in” an adult with a connection to the child might well be raised. Not always, of course, and, in any event, your lawyer will have ample notice with which to deal with such a defense.

There are youth program statutes, including M.G.L.c. 231, s.85V. That statute poses a higher burden on finding liability against a coach or other defendant by requiring a showing of gross negligence. Gross negligence has been likened to recklessness, a considerably higher level of proof. Given that we are dealing with a volunteer requiring a higher standard seems reasonable.

There are also the issues of releases that are signed prior to any activity. A release that is signed by a child’s parent will bar a claim for negligence by that child in these youth activities. See Sharon v. City of Newton, 437 Mass. 99 (2002). (Of course, adults sometimes sign releases involving their own activities and these releases bar the would-be plaintiff, the parent, for negligence.) In a later blog, I will look at the policy articulated by the Massachusetts courts for upholding a release forfeiting the right to recover, even when that release is signed by a parent.

What about a release that is signed so that a child can participate in a youth program? That would seem to pose two obstacles: the release itself and that it is in a youth activity. Again, we turn to gross negligence for the law is that a signed release would protect the defendants in an ordinary negligence claim. However, when the injury occurs in circumstances of gross negligence, the signed waiver does not insulate the defendant. This distinction is explicitly stated in M.G.L. c. 231, s. 85V, “[t]he immunity conferred by this section shall not apply to any acts or failures to act intentionally designed to harm, or to any grossly negligent acts or failures to act which result in harm to the person” (emphasis added).

Still, other times, the defendant will sometimes make the argument that a danger is considered “open and obvious” to the plaintiff, and therefore, they should not be held liable for an injury resulting from this dangerous action. However, ae we have seen, children are not held to the same standards of judgement that an adult would be. There are exceptions to this, but only when the Court finds the activity to be so excessively dangerous that it is “open and obvious” even to a child.

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