Legal considerations for personal injury suits by children | Bret S ...

Children under the age of 18 cannot sue on their own behalf for personal injuries, so they have to be represented by a parent or guardian in the lawsuit. This is usually structured as ?Parent, as next friend of Child? or ?on behalf of Child.?

What if the parent?s negligence is the cause of injury to the child? There?s an old common law doctrine called interspousal tort immunity, codified in Georgia at O.C.G.A. ? 19-3-8, which holds that one spouse may not sue the other. The purpose is to promote harmony of the family unit, and avoid fraud, among other things. This is also extended to suits by unemancipated minors against their parents. See Donegan v. Davis, 310 Ga. App. 446 (2011) (?It is well established in Georgia that an unemancipated minor may not sue a parent for injury arising from a negligent act. ? Public policy reasons which support the parental or family immunity include: (1) disturbance of domestic tranquility, (2) danger of? fraud and collusion, (3) depletion of the family exchequer, (4) the possibility of inheritance, by the parent, of the amount recovered in damages by the child, and (5) interference with parental care, discipline and control.?) (internal citations omitted). So, children under the age of 18?the age of majority, or emancipation?can?t sue their parents for personal injuries based on negligence.

But what if someone who is taking care of the child causes an injury? Another legal doctrine called in loco parentis comes into play, and the inquiry is whether at the time of the suit, the person who caused the injury and who is being sued is acting as a guardian or caretaker of the child, i.e., they?ve taken on some or all of the responsibilities of a parent. If they are in loco parentis, then the child cannot sue the person, as they?re essentially acting as a parent to the child. Typically this requires some long term relationship of care between the child and the adult. If, for example, there?s no long term relationship, or the child is merely visiting a grandparent or the like, they will not be barred from recovery for personal injuries caused by the negligent adult. See, e.g., Harris v. Hardman, 131 Ga. App. 941 (1975) (?When a person undertakes to control and watch over a young child, even without compensation, he becomes responsible for injury to the child through his negligence. His duty to use reasonable care is not measured by what his duty would have been to a social guest or a licensee, but is to be gauged by the standard of the average responsible parent.?) (internal citation omitted).

Source: http://bretmoorelaw.com/2012/12/legal-considerations-for-personal-injury-suits-by-children/

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