When a Child Is Injured: Tolling, Probate Approval of Settlements, and Special Duties of Care

Published July 1, 2014 · Injury Law Basics

Summer is when we get the calls: a nine-year-old hit by a car while riding her bike home from the pool, a toddler bitten at a neighbor's cookout, a teenager hurt at a friend's apartment complex. The parents are exhausted, the child is scared, and the adjuster is already calling. Ohio law treats a child's injury claim differently from an adult's in three important ways, and understanding them early protects both the child and the family.

The child's deadline is paused, and so, usually, is the parents'

Ohio gives an injured adult two years to file most injury lawsuits. We explained the basics in our post on Ohio's two-year deadline for injury claims. For a child, R.C. 2305.16 "tolls" that deadline, which is the legal word for pausing the clock. If the injured person is a minor when the claim arises, the time to sue does not begin to run until the disability of minority is removed, meaning the child turns 18. In practical terms, a child hurt at age nine has until age 20 to file his or her own lawsuit.

That sounds like plenty of time, and it is a genuine protection. But two cautions matter.

First, the parents' claim is a separate claim. In Ohio, parents have their own claim for the medical bills they paid and for the loss of their child's services and companionship. In Fehrenbach v. O'Malley, 113 Ohio St.3d 18 (2007), the Supreme Court of Ohio held that because that claim is "joint and inseparable" from the child's, the parents' deadline is paused along with the child's. That is good law for families, but it is not a reason to wait. The parents' claim and the child's claim generally have to be brought together, and the defense will argue about every year of delay.

Second, deadlines are not the same thing as evidence. Witnesses move. Store surveillance video is recorded over in days. The driver's phone records are purged. A dog owner sells the house. Waiting nine years to investigate a nine-year-old's injury is a way to lose a case that should have been won. The paused clock is a safety net, not a plan.

Settling a child's claim: why the probate court is involved

When an adult settles an injury claim, he or she signs a release and the case is over. A child cannot legally sign a release, and Ohio does not let a parent simply sign away a child's claim either. R.C. 2111.18 requires that a settlement of a minor's injury claim be made with the advice, approval, and consent of the probate court.

Here is how that works in plain English.

• Larger settlements. If the child's net recovery, after fees and expenses, is more than $25,000, the probate court generally appoints a guardian of the child's estate. The guardian, often a parent, is responsible for the money, and the court supervises it. In most cases the funds go into a restricted account or an annuity that the child cannot touch until age 18, and the guardian cannot spend it without the court's permission.
• Smaller settlements. If the net amount is $25,000 or less, R.C. 2111.18 lets the court approve the settlement without appointing a guardian and authorize a suitable person, usually a parent, to receive the money for the child.
• The parents' claim. The statute also lets the parents waive their own claim for loss of the child's services and fold it into the same settlement, so one application resolves everything.

The probate judge's job is to make sure the settlement is fair to the child and that the money is protected. In Montgomery County and the surrounding counties, that typically means an application that lays out the facts, the injuries, the medical treatment, the proposed settlement, the attorney fee, and where the money will go. The court may require the child and parent to appear briefly. Insurance companies will not pay a minor's settlement without the court's entry, and a lawyer who handles these regularly makes the process quick rather than painful.

Parents sometimes ask whether they can skip all this by having the adjuster pay them directly. The answer is no, and the reason protects your child. A release signed only by a parent does not bind the child, so the insurance company has every incentive to insist on probate approval. More important, the process guarantees the money is there when your child turns 18, rather than absorbed into household expenses during a hard year.

Children are owed extra care

The third difference is about fault. Ohio law expects drivers, property owners, and businesses to anticipate how children actually behave. A child darting into the street, climbing something that looks like fun, or wandering toward a dog is foreseeable, and the law takes that into account.

• Drivers. A motorist who sees children near the road, a school zone, a park, or a neighborhood on a summer evening must slow down and expect the unexpected. We handle these cases every year; see our page on pedestrian and crosswalk injuries. Ohio also requires proper child restraints in vehicles, which we covered when the booster seat law became enforceable.
• Property owners. A homeowner, apartment complex, or store that knows children are present must take reasonable steps to guard against hazards that a child cannot be expected to appreciate: an unfenced pool, an unsecured trampoline, exposed wiring, a broken stair rail.
• Dog owners. Ohio's dog-bite statute imposes strict liability on the owner, keeper, or harborer of a dog, and children are its most frequent victims. We explained the statute in our Ohio dog bite law post.

The flip side is that insurance companies try to blame the child. Ohio's comparative-fault rules do apply to minors, but a child is held only to the standard of care of a reasonable child of the same age, experience, and maturity, not an adult's. A six-year-old is not expected to read traffic the way a thirty-year-old does. We push back hard on adjusters who try to assign fault to a young child.

What this means for you

If your child has been seriously hurt, three things are true at once. There is time, because the child's own claim is tolled. There is not unlimited time, because the parents' claim runs on the regular schedule and evidence disappears quickly. And any settlement will go through the probate court, so the case should be built from the start with that approval in mind, including a clear accounting of the medical bills, the child's prognosis, and whether future care will be needed.

A serious injury to a child, especially one with lasting effects, is a high-value claim that the insurance company will work hard to minimize. Getting a lawyer involved early means the evidence is preserved, the medical story is documented, the parents' claim is protected, and the probate process is handled properly so the money is there when your child needs it. Learn more about how we approach personal injury cases.