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Injury & Wrongful Death Claims Involving Children

Serving Central Florida, Orlando and Tampa, FL

It has been said that children make up a small portion of our population, but are all of our future. Indeed, they are the most precious of our natural resources and deserving of the highest level of care and protection.

Child Safety Restraints

Florida law requires that all children (newborn to 15 years of age) traveling in a car, van or pick-up trucks to be in an age-appropriate safety-restraint, e.g. rear-facing infant seat, convertible infant/toddler seat, booster seat and seatbelt.

Children and Airbags Do Not Mix

Airbags save lives, adult lives. However, small children and older children who are short in stature should NEVER ride in a seat equipped with an airbag. Airbags inflate with explosive force. Even a low-speed crash could result in injury or death to a child. Over the years we have represented many children with permanent facial injuries, loss of vision and other significant and permanent injuries. Unfortunately, in such cases, a child's potential recovery is often reduced by the percentage of fault attributed to the parent (or other adult) who placed the child in front of the airbag.

Claims of Minor Children

Certain laws apply to the settlement of a minor child's claim that differ from the settlement of an adult's claim. These laws serve as additional protection for minor children. Florida Statutes §§744.387 and 744.301, along with Rule 5.636 of the Florida Probate Rules govern the settlement of minors' claims.

§744.301, Natural Guardians and §744.387, Settlement of Claims provide:

A parent or parents (natural guardians) may settle the claim of their minor children, without necessity of court approval or appointment of a guardian ad litem, when the GROSS settlement does not exceed $15,000. ***
In any case where a minor has a claim for personal injury, property damage, or wrongful death in which the GROSS settlement for the claim of the minor exceeds $15,000 the court may prior to the approval of the settlement of the minor's claim, appoint a guardian ad litem to represent the minor's interests.
In any case in which the GROSS settlement involving a minor equals or exceeds $25,000, the court shall, prior to the approval of the settlement of the minor's claim, appoint the guardian ad litem.
The duty of the guardian ad litem is to protect the minor's interests.
A legal guardianship shall be required when the amount of the NET settlement to the minor exceeds $15,000.
*** If a lawsuit is filed, any settlement reached on behalf of the minor shall be approved by the Court before the settlement is effective. This applies even if the GROSS settlement value is equal to or less than $15,000.

Children are unpredictable. You never know what inconsistency they're going to catch you in next.
~ Franklin P. Jones

Duty of Motorist Toward Children

A motorist must exercise reasonable care to guard against the unpredictable and erratic behavior of children on or near the street or highway if he or she knows or should know that children are in the area.

Liability of Child for Negligent Act

Comparative negligence is a common defense to a claim for personal injury.

However, a child under the age of six (6) is presumed to be incapable of committing a negligent act. This is because children of such tender age do not have an appreciation for certain dangers and safety issues. There are some statutory exceptions to this rule, e.g. when a child provokes a dog to bite.

When the child is over the age of six (6) the test used to determine whether child was comparatively negligent is whether a reasonably careful child of the same age, mental capacity, intelligence, training and experience would have exercised the same degree of care under like circumstances.

Parental Liability for Negligent Act of a Child:

Typically, a parent is not liable for the negligent acts of his or her children, unless:
1. the parent entrusts the child with a dangerous instrumentality, e.g. a car, a firearm.
2. the child is acting as the parent's agent in committing the negligent act, e.g. telling child to do an act that they know will lead to another's injury.
3. the parent knows of and consents to the child's negligent behavior, e.g. child is shooting a BB gun at passing cars or in a place where people could get hurt and does nothing to stop it.
4. the parent fails to exercise control over the child when injury is a possible consequence, where the child had a habit of engaging in a particular act or course of conduct which led to another's injury.

Lilly, O'Toole & Brown, LLP
Lakeland Office: (863) 683-1111
Bartow Office: (863) 533-5525
Sebring Office: (863) 471-0003
Lake Wales Office: (863) 676-1991
Haines City Office: (863) 422-1282
Wauchula Office: (863) 767-1111
Winter Haven Office (863) 294-8100

Also providing legal assistance to clients from:
Wauchula, Lake Placid, Avon Park, Plant City, Brandon, and Valrico, Florida.

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Lakeland Office
800 S. Florida Ave.
Lakeland, FL 33801
Phone: (863) 683-1111
Fax: (863) 683-0915

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Sebring Office
2154 Lakeview Drive
Sebring, FL 33870
Phone: (863) 471-0003
Fax: (863) 471-2034

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Bartow Office
310 E. Main Street
Bartow, FL 33830
Phone: (863) 533-5525
Fax: (863) 533-0505

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Lake Wales Office
815 S.R. 60 East
Lake Wales, FL 33853
Phone: (863) 676-1991
Fax: (863) 676-3873

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Winter Haven
70 Fourth Street N.W.
Winter Haven, FL 33881
Phone: (863) 294-8100

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