Broward Injury Lawyer Blog
Few occurrences are quite as traumatic as the serious injury or death of a child. Parents navigating the aftermath and exploring avenues of accountability and compensation from those at fault need to understand there are a few ways in which Florida child injury lawsuits differ from other claims.
As our Fort Lauderale personal injury lawyers can explain, many underlying legal principles, causes of action and deadlines are the same. But when a victim is a minor, there may be some special considerations and extensions.
Here, we detail three ways that Florida child injury lawsuits may be different than adult personal injury filings.
1. Statute of Limitations for Child Injuries in Florida
For the most part, the statute of limitations (the window of time during which one has the right to file legal action) for child injury claims is the same as it is for adults. F.S. 95.11 gives claimants up to two years to file claims founded in negligence (which are most personal injury claims), medical malpractice, and wrongful death. (It used to be four years. If the incident occurred on or before March 24, 2023, you may still have up to four years to file. But it’s best not to wait, if you can.)
This is a pretty hard deadline. However, some circumstances will give rise to a pausing or “tolling” of the statute of limitations. One of those special circumstances is when a person under the age of 18 is the one who was injured. F.S. 95.051(i) allows up to 7 years from the “cause of action” (usually the date of the accident or wrongdoing). However, this exception only applies if the child’s parent, guardian or guardian ad litem:
- Does not exist.
- Has in interest that is adverse to that of the child.
- Has been deemed incapacitated to sue by a court.
These are fairly narrow exceptions. For the most part, the statute of limitations for Florida child injury claims will still be 2 years unless some other exception (fraud, concealment, etc.) applies.
Another possible extension might be found under the statute of repose discovery rule. This is primarily going to apply to birth injury lawsuits, wherein the effect of negligence or its cause is not apparent until much later. While the statute of repose for most medical malpractice cases is up to 4 years, it can be up to 8 years (no later than the child’s 8th birthday) for birth injury claims.
2. Minors Cannot File an Injury Lawsuit or Claim
A child who is under the age of 18 in Florida lacks the legal standing to file a claim or lawsuit for personal injuries. But that doesn’t mean they should wait until they’re 18 to explore filing. (In fact, they may lose the opportunity forever if they don’t act soon enough.) The solution is in F.S. 744.301. It allows for the child’s natural guardians (i.e., their parents) the authority to pursue and settle any claim on behalf of their child, so long as it doesn’t exceed $15,000. This includes personal injury claims, life insurance policies, etc. for which they can collect, receive, manage, and dispose of the proceeds.
Of course, many Florida personal injury claims can easily exceed $15,000. In this case, parents can still pursue such claims, but they need court approval to do so, and funds may be held in a restricted bank account or annuity (from which necessary and reasonable withdrawals can only be made for the child’s benefit). This additional step is another reason parents of a child who has been injured should seek prompt legal advice. Your personal injury lawyer can help guide you through this process.
It’s worth noting that parents, too, may have their own claims for medical bills or other losses that they personally incurred as a result of the child’s injury.
3. The “Reasonable Person” Standard Considers a Child’s Age, Maturity
In many Florida personal injury and wrongful death lawsuits, a key defense is to argue that the plaintiff (person hurt) or decedent acted outside the bounds of what the average person would consider reasonable. This is known as the “reasonable person” standard. But children are not held to the same standard of “reasonableness” of the average adult. They may be held to the standard of what is reasonable for an average child of their age, maturity and intelligence.
There are even specific statutes that expressly take a child’s ability to reason into account. For example, F.S. 768.05 grants immunity to property owners when trespassers are hurt — except where children may have been enticed by an “attractive nuisance” for which they are not able to fully appreciate the danger. This could include anything from swimming pools to trampolines to abandoned refrigerators or airtight units. Because such features may be enticing to curious kids who can’t appreciate the risks, property owners have a duty to take extra care in preventing children from trespassing on their property and getting hurt. Example: A property owner with a swimming pool should have sufficient gates, alarms and other security features that would prevent kids from easily gaining access.
If your child has been injured in South Florida, our Fort Lauderdale personal injury lawyers at The Ansara Law Firm can help answer your questions about the viability and potential value of an injury lawsuit filed on their behalf.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
Safe Kids Florida, Florida Department of Health
More Blog Entries:
Hiring a Broward Injury Lawyer: FAQ on Free Initial Consultations, Jan. 10, 2023, Broward Personal Injury Lawyer Blog
