Important Legal Ramifications in Child Injury Claim Cases

The Acid Test: Does a Legal Claim Exist? A child may have a legal claim arising from an injury accident. A legal claim arises when the child is entitled to compensation for the injuries and damages proximately caused by the accident. Whether a child has a legal claim for injuries sustained in an accident will depend on many different factors. Generally, a child will only have a legal right to recover compensation if the injuries were caused by another party's negligence.

In Washington state, the term "negligence" is defined as a person's failure to exercise ordinary care under similar circumstances that led to the child's injury. Not only can a person be found negligent, but so can a corporation or governmental agency. Oftentimes it will be easy to determine whether a party was negligent, like when a driver runs a stop sign or fails to yield to pedestrians in a cross-walk. The violation of a known rule, statute or regulation can also provide evidence of whether a party was negligent. For example, if a person injures a child and also violates a statute or regulation while doing so, that violation may be admissible in a subsequent trial to prove that the person was negligent.

Sometimes there may be more than one negligent party who has caused the harm to the child. Washington follows the law of comparative negligence (also called comparative fault). This term means that more than one party may be responsible for a child's damages according to each party's percentage of negligence. For example, let's say Party A and Party B both negligently injured a child and that child's damages were calculated at $100,000. Party A was found 25% responsible and Party B 75%. Party A's share of the child's damages is $25,000 and Party B's share is $75,000. Under the law of comparative fault, each negligent party is only responsible for its share of damages as determined by the jury (or a judge if the matter is tried without a jury, i.e., bench trial).

Note: The "cost" of bringing the case refers only to the costs of litigation, like hiring experts, conducting depositions, creating exhibits, etc. This does not include the fees owed to the lawyer for his or her time and expertise. Most lawyers however are hired on a contingency fee in birth injury cases.