As a parent, when one of our children is wronged, our first instinct is to try to make it right and fix it for them. Sometimes that means letting them work through it on their own, and sometimes that means stepping in and helping them.
When a child is injured in an auto accident or by the negligence of someone else, that usually falls into the realm of stepping in and helping them right the wrong. However, since minors (children under 18) are unable to file a lawsuit on their own, a common question that comes up is whether a parent can file a lawsuit on behalf of their child.
The Role Of The Guardian Ad Litem
In our courts, a minor child’s interests can be protected by the court appointing a “guardian ad litem” to advocate on their behalf. The guardian ad litem may be another lawyer, a family member, or a friend, and must be appointed before or at the same time as the filing of the minor’s case.
In these cases, it’s important to recognize that the attorney doesn’t represent the guardian ad litem’s interests – they represent the minor child’s interests and the guardian ad litem in their official capacity as a representative of the minor’s interest. This means that the guardian ad litem can also be removed if they begin to act in a manner that is not in the best interest of the minor child.
Contributory Negligence In North Carolina
North Carolina is one of only a few states where “contributory negligence” plays a role in determining fault. What this means is if the injured party contributed to the accident in any manner, they can not recover damages. There are exceptions to this, but they are rare in practice.
The doctrine of contributory negligence is applied differently with minors, though. For children under 7 years old, they are deemed incapable of contributory negligence in any situation by our courts.
From 7 years old to 13 years old, the presumption is that a minor child is incapable of contributory negligence, but this presumption can be overcome if it’s demonstrated that they did not use the care that a similarly aged child would have used in the situation.
From 14 to 17 years old, though, that presumption goes the other way – it’s presumed that they are capable of contributory negligence, unless it’s shown otherwise.
When The Settlements Are Paid
When a child is injured and is entitled to reimbursement, the parent or guardian also has their own independent claim, and is entitled to reimbursement for any medical expenses before the minor turns 18 years old. For any expenses after the minor turns 18, they will have their own claim for things such as medical expenses, pain & suffering, lost earning capacity, and possibly more.
For any settlement amounts meant for expenses before the minor turns 18, the parent or guardian will receive the payments, while any payments made for the minor’s own claims (after they turn 18) will be held by the court until the minor turns 18. This structure ensures that the funds are protected and still available when the minor becomes an adult. Depending on the situation, there are also different ways to handle the funds, such as structured settlements, special needs trusts, and more.
Have An Experienced Attorney On Your Side
There are also other considerations, such as the statute of limitations, that may be different for minors than adults. This, along with other potential complexities, make it critical to work with an experienced Raleigh car accident lawyer to ensure your rights, and your child’s rights, are protected during the process.
