An adult must file a personal injury lawsuit within two years of the injury. This time limit is called the statute of limitations. If a person attempts to file a lawsuit after the time limit has run out, the case will be dismissed. There are different statutes of limitations for different types of cases (e.g. contract, property damage, defamation). If a child has a personal injury case, the statute of limitations does not end until his twentieth birthday. Because Virginia law considers a minor to be “under a disability,” the statute of limitations is tolled, or on hold, until the child is eighteen years old. Therefore, the statute of limitations does not go into effect until the child is legally an adult and no longer considered to be under a disability. [Virginia Code 8.01-8, 8.01-229]
There is one important exception to this rule. If a child has been legally emancipated—a process which requires a Court hearing—then he is no longer under a disability. If the child is emancipated when the injury occurs, he has two years from the date of injury (the normal statute of limitations for a personal injury case). If the child becomes emancipated after the injury, he has two years from the date of emancipation to file his personal injury lawsuit. [Virginia Code 8.01-229]
Virginia law classifies every child under the age of 18 as an “infant”. An infant is considered to be incapacitated and therefore unable to file a lawsuit in his own name. If a child has a personal injury case, or any other type of case, he may only file suit through his “next friend.” Either one of the child’s parents or both parents can be the child’s next friend. While the most frequent next friend is a parent, if a parent is not available then another adult or his legal guardian can file the suit as the child’s next friend. [Virginia Code 8.01-8, 1-207]
Parents are responsible for the medical bills of their children, so when a child is injured and files a personal injury action, the child cannot claim the medical bills as damages. The child’s parents are the party that can file a claim for the losses they have incurred as a result of paying medical bills. The parents can file a lawsuit with the child in the same action or they can file separate law suits. If they file separate actions, the child’s case and the parents’ case can be joined and tried as one, as long as the request is made at least a week before trial. If the child’s case and the parents’ case are tried together, the jury will render two separate verdicts. The parents receive a verdict for the medical bills and the child for the non-economic losses (e.g. the injury and its affect on his health, pain and mental anguish). [Virginia Code 8.01-36]
It is important to note that the statute of limitations is different for each case. As previously explained, the child’s statute of limitations does not run out until two years after his eighteenth birthday, while the parents have only five years to file suit for the medical bills or any other economic losses.
If a child is legally emancipated and has a personal injury case pending, he may make a recovery for any lost wages that he may have procured as a result of his injuries. [Virginia Code 8.01-50]
If the child is not emancipated, the law does not determine whether he can make a lost wage claim or if that claim would belong to the child’s parents.
In Virginia, to succeed in a personal injury action, you must prove that the party that caused you harm was negligent. Negligence is the failure to use ordinary care. If the defendant is found to be negligent, he can try to prove that the injured party was also negligent. If the injured party was negligent, he is found to be contributorily negligent. To be free from contributory negligence, an adult must have acted with ordinary care, as a reasonable person in the same situation would have acted. If a jury finds that the injured party was contributorily negligent, then that injured party cannot make an economic recovery for his injuries.
For children, the standard of contributory negligence is different. Under Virginia law, a child under the age of seven is incapable of being negligent. Children between the ages of seven and fourteen are presumed to be incapable of negligence. However, if the child is capable of understanding the risks of his actions and his conduct did not conform to that of a reasonably prudent child of the same age, intelligence, maturity and experience, then a jury can find that child to be contributory negligent.
Because children are considered to be under a disability, most settlements involving a child’s personal injuries will require court approval. Approval requires a hearing by the court to determine if the settlement is appropriate and in the best interest of the child. A hearing may not be necessary if the child is only making a modest recovery.
If the court approves the settlement, then the funds will be paid to the Clerk of the Court and held until the child is 18. There are some exceptions to this requirement. If the child is legally emancipated, the court can release the money to the child. If the child is not emancipated, the court can also allow the money to be paid to a parent to be held in trust for the child. While the law does allow the parents to receive the money in trust for the child, courts are very hesitant to do so. As a practical matter, courts will not release the funds except in very rare circumstances.
Because funds held by the Clerk of the Court are only placed in a savings account, structured settlements for children can significantly increase their recovery. Most savings accounts receive only very small amounts of interest. However, structured settlements can pay significantly higher interest rates. The law allows the child’s funds to be structured as long as certain requirements are met. Structuring also provides the added advantage of flexibility. Payments can be delayed past the age of eighteen or can be paid out at different ages. The possibilities of how to structure the settlement are endless and vary depending on the needs of each individual.
If the court holds the funds, the child simply needs to appear before the court when he is eighteen and the funds will be released. If the money is structured, it will be mailed to the child from the annuity company. In either case, if the child dies, the money would be left to his or her heirs.
In a lawsuit where a person is under a disability (e.g. an infant), the court may appoint an attorney to be a guardian ad litem. This attorney’s duties would include reviewing the settlement to make sure it is in the best interest of the child. This attorney would be in addition to (and independent of) the attorney that the family retained to represent the child in the personal injury action. Not all courts require a guardian ad litem, but they have the discretion to do so if they believe the interests of justice will be served by appointing one.
When a person dies as a result of the negligence of another person, the deceased person’s estate has a cause of action for wrongful death. The case belongs to the estate of the deceased, and the administrator of the estate is the party that pursues the action and files the lawsuit. For an adult, any family member may qualify as the administrator. If after thirty days no family member has qualified, then anyone outside of the family can qualify as the administrator for the limited purpose of filing the suit on behalf of the estate.
When the deceased party is a child, Virginia law favors the custodial parent to be the administrator. The custodial parent may qualify as the administrator, or he may designate another person to be the administrator. If the custodial parent (or his designee) does not apply to qualify within thirty days of the child’s death, then an administrator may be appointed in the same way as in an adult case. [Virginia Code 8.01-50]