Children can be injured in a number of ways, from automobile accidents, to ATV injuries, to injuries from dogs. When a child is injured, the laws in Wisconsin provide some special protections. Children have a longer statute of limitations, special rules of negligence, and special protections from the court at the time of settlement.
The usual statute of limitations in Wisconsin is three years from the date of injury in negligence cases. There are certain exceptions to that time limitation that are beyond the scope of this article. You should always check the law to see how much time you have to file a claim. If you do not file your claim within the statute of limitations you will not be able to collect your damages, so it is a very important determination.
The statute of limitations for children in negligence actions in Wisconsin is two years from their 18th birthday. Again, there are exceptions to this rule, including claims for medical negligence, and claims against the state. The policy behind the law is to allow children to decide for themselves whether they want to bring a claim once they reach the age of majority. For example, a parent may not want to sue for the dog bite their daughter suffered when she was thirteen. The law gives the daughter the opportunity to make that decision for herself once she turns 18.
The next difference in the law for injured children concerns determining fault. The general rule is that everyone in Wisconsin is required to act with reasonable care, and that a failure to act reasonably is negligence. With children, Wisconsin has decided that anyone under the age of 7 cannot be negligent as a matter of law. Children over the age of seven are expected to act as a reasonable child their age would act. The law is designed to hold children to a lesser standard of care, but creates a practical problem. One has to be an adult to serve on a jury, and if the injury involves a 12 year old child, the jury will be asked to judge how a reasonable 12 year old would act.
Wisconsin law also seeks to protect money paid to children when they are injured. The law requires the court to hold a minor settlement hearing and to have a guardian ad litem appointed to ensure that the settlement is fair, and to make sure the money is put away for the benefit of the child. The court normally requires the settlement money be put in protected account, and requires court action to take money out of the account before the child’s 18th birthday. Thus, if a parent wants to use some of the settlement money to pay for expenses of raising the child, they have to go to court. Judges are reluctant to release funds for the every day expenses of child raising. However, if the child needs medical care, and the minor settlement funds are the only way for the child to get the care, courts are likely to release the money.
One drawback to the system currently in place is that once the child turns 18, the money is theirs to do with what they want. In some cases, an 18 year old will be responsible, but many will spend the money on a new car or other disposable goods and have nothing left in a couple years. A parent can try to set up a structured settlement that pays out some of the money at 18, and the rest later. These types of settlements are a good way of protecting a child from the excesses of youth. A note of caution is required however. You should look carefully at the structure, and make sure it is a good investment, and you should be aware that your child could potentially sell the structured settlement for pennies on the dollar once they turn 18.
If your child has been injured, contact dgahnz@lawtoncates.com.