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Marketplace News: California law treats children differently than adults

Russell Kohn
Russell Kohn
Suzanne Skolnick

We are always vigilant to protect our kids.  But sometimes, we are unable protect them.  Injuries to children present special legal issues that differ from cases involving adults.  Generally, due to their active daily routine, children are more susceptible to injuries than the average adult. The question is whether the adult supervising the minor child was “negligent”.

Negligence relates to whether a duty of care was owed to the victim and whether the duty was breached and caused damages.  Under California law, children are not held to the same legal standards of behavior as adults for determining negligence. Whereas, an adult is held to the standard of an ordinary reasonable person, a child is only required to use the amount of care that a reasonably careful child of the same age, intelligence, knowledge, and experience would use in that same situation. In California, children under the age of five are incapable of committing negligence as a matter of law.

California law also treats children differently than adults with respect to the duty of care.  A greater degree of care is owed to children than adults because children lack the capacity to appreciate the danger and risks involved.  Our offices have handled many cases on behalf of children including, for example, dog bite cases and premises liability cases involving children.  This includes a child burned by hot coffee at a restaurant, and injuries occurring on school grounds from a trip and fall incident.  Dog bite injuries to children often result in high damage awards because many children sustain facial scarring from a dog bite. 

California law tolls the statute of limitations until the child reaches 18 years of age. This means, for example that a child injured in a traffic collision could wait until two years after his or her 18th birthday to file a lawsuit. There are many exceptions to this general rule that shorten the time limit to file a lawsuit on behalf of a child, such as in cases for medical malpractice and cases against government entities. Therefore, it is wise to promptly consult with an attorney knowledgeable about claims for injuries to children. 

In lawsuits where a child is a plaintiff, generally the court must approve any settlement.  This is known as a “Minor’s Compromise Petition” and usually involves filing detailed documents with the court and a court hearing before a judge.  Thus, when a child has been injured due to the negligence of a third party, the child’s parent or guardian should promptly consult with an attorney so that the attorney can appropriately advise, represent and resolve the child’s claim.  If you believe your child was injured due to another person’s negligence, call Russell S. Kohn, Esq., of the Kohn Law Office at 760-721-8182 or Suzanne Skolnick, Esq., of the Skolnick Law Group at 760-585-7092 or email to [email protected] for a free initial consultation.