Statute of Limitations When a Child Is Injured

In many discussions about personal injury lawsuits, determining the statute of limitations a victim has to file the suit is critical because once the date has passed, the victim loses their opportunity to pursue damages against the party responsible for their injuries.

Recently, the legal team at Shapiro & Appleton was contacted by the mother of a child who sustained injuries in an accident almost 17 years ago. According to the mother, at the time her child was injured, various personal injury attorneys had advised her that no lawsuit could be filed until two years after the date the child turned 18 years old. 

 

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Under the personal injury laws in Virginia, the statute of limitations for a personal injury case is two years. However, when it comes to injuries to minors, the clock does not begin ticking on that two-year period until the minor turns 18. Per Virginia Code § 8.01-229(A)(1), an injured minor is referred to as an “infant” and is considered to be under a “disability” until their 18th birthday. Therefore, the law states that the statute should be “tolled” until then.

The only exception to this law is if the minor has been emancipated from their parents. If the minor was emancipated when the injury occurred, then the statute of limitations is two years from the date of injury. If the minor is emancipated after the injury, then the statute of limitations for filing a lawsuit is two years from the date of emancipation.

Although the law allows for this delay in filing an injury lawsuit, waiting until the minor is 18 is typically not advisable, especially if he or she is very young or an infant at the time they are injured, like the situation with the mother above who contacted our office. There are several reasons for this, including:

  • It can be difficult to get evidence after such a long period of time
  • It can be difficult to get all the medical records and bill after such a long period of time.
  • Witnesses, including treating medical sources, may be difficult to locate or they may be deceased.
  • The minor may not remember the incident, treatment, or the pain and suffering the experienced in the aftermath of the incident.

A minor does not have to wait until his or her 18th birthday to file a personal injury lawsuit. This can be done through a parent under Virginia Code § 8.01-8, as the minor’s “next friend.”

There are several differences to keep in mind between injury lawsuits for adults and injury lawsuits for children. When an adult victim is injured and pursues an injury claim against the at-fault party, they are entitled to financial compensation for medical expenses, lost wages, pain and suffering, emotional anguish, permanent disability, disfigurement, and more.

When an injury lawsuit is filed on behalf of a minor, the damages that are pursued are the noneconomic ones, such as pain and suffering, emotional anguish, and disfigurement. Medical expenses and other economic losses are not included in a child’s personal injury lawsuit since it is likely the child’s parents who were responsible for those expenses.

Instead, the parents will need to file a separate personal injury lawsuit, in their name, against the at-fault party. However – and this is critical – the statute of limitations is different for the parents’ claim. They do not have until the child’s 20th birthday to file. A Virginia personal injury attorney can explain what that statute of limitations is for your particular case.

Any settlement will likely be court approved under § 8.01-424 and funds will be held in a court account until minor turns 18.  Trusts can be arranged as well.  However, court will be risk-averse because it wants to protect the funds for the minor.

If your child has been injured, contact a Virginia personal injury attorney to find out what your legal options are. At Shapiro & Appleton, we have been fighting for accident victims for more than three decades and will work diligently to get you the amount of compensation you deserve for your losses. Call our office today at 800-752-0042 for a free and confidential consultation to find out how our legal team can help.

Richard N. Shapiro
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Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia