Few things are more frightening than seeing your child hurt in an accident. If it happened because someone else was careless, Illinois law lets a parent pursue a claim on the child’s behalf, and the filing deadlines work differently for children than they do for adults. Here is what tends to injure children, where liability comes from, and what the timing rules mean for your family.
Leading Causes of Childhood Injuries
As one might expect, “unintentional injury” is the most common category for accidents involving injuries to young children, according to the Centers for Disease Control and Prevention (CDC), and these accidents include falls, burns, drowning, poisoning, and auto accidents. Injuries can also stem from professional negligence, unsafe property, and defective products. If your child has been injured in an accident due to the negligence of another person or entity, speak with an experienced personal injury lawyer as soon as possible.
- Professional malpractice – Malpractice can be committed by a variety of professionals, such as dentists, doctors, and therapists, and you may be entitled to compensation by filing a claim against the professional and his/her insurance carrier. Malpractice claims involving a child run on their own schedule, described below, so speak with an attorney early rather than assuming the ordinary deadline applies.
- Premises liability – Accidents caused by poor maintenance of a facility may include burns, slip-and-falls, and pool-related injuries, and the property owner may be legally liable for an accident caused by poorly-maintained premises.
- Auto accidents – Road crashes are a leading cause of death among children and young people worldwide, according to the World Health Organization (WHO), and holding a negligent driver accountable for your child’s injuries requires strong evidence that the driver breached his/her duty of care on the road, which directly resulted in the accident and your child’s injuries.
Children Injured on Someone Else’s Property
An injury on someone else’s property does not by itself make the owner liable. Illinois requires an owner or occupier to use reasonable care under the circumstances regarding the condition of the property and what is done on it (740 ILCS 130/2). Liability usually turns on whether an unreasonably dangerous condition existed, whether the owner knew or should have known about it, and whether reasonable care would have addressed it. There is no duty to warn about a condition the visitor already knows about or that is open and obvious. That said, what counts as reasonable care can look different when children are the likely visitors, because children are less able to recognize and avoid a hazard.
Illinois also gives children some protection when they are on property they had no permission to be on. Rather than a general rule shielding owners from all trespasser claims, Illinois courts ask whether the owner knew or should have known that children habitually come onto the property, whether a dangerous condition was present there, whether children were unlikely to appreciate the risk it posed, and whether the burden of fixing or guarding it was slight compared with that risk. The owner does not have to have known your particular child was there, and the hazard does not have to be a defective structure. Illinois courts have generally declined to extend this protection to risks children are expected to understand, such as open water, fire, and height, which is one reason these cases turn heavily on the specific facts.
Daycare Injuries
While children are naturally prone to getting injured in any environment, including daycares, day care providers do have a responsibility to make their environment safe and protect the safety of all children in their care. Illinois law designated the Illinois Department of Children and Family Services to regulate childcare in the state, and Illinois has several regulations that govern daycare centers. Unfortunately, children may be injured at daycare for several reasons, including:
- Unsafe toys
- Lack of supervision
- Choking hazards
- Unsanitary conditions
- Unsafe playground equipment
Injuries may also be the result of physical, emotional, or sexual abuse. According to the National Center for Education Statistics, 60% of infants, toddlers, and preschool-aged children are enrolled in childcare, and more than 30,000 children aged 4 and younger have been treated in emergency rooms for injuries sustained in childcare settings. Common injuries include lacerations, bumps and bruises, fractures, and dental injuries. The majority of these injuries occur on the playground, while more than half of concussions and fractures are caused by falling from playground equipment.
In many cases, children in daycare are too young to tell parents about abuse or injuries sustained at daycare, which is why it is very important to obtain medical attention immediately if you suspect your child has been harmed. Daycare workers must have adequate training and supervision, yet all too often daycare centers leave children with underpaid or poorly trained workers.
Researching Your Daycare Facility
No child should be hurt at daycare. Before choosing a child care facility, follow these tips:
- Do an online search for the name of the facility to look for inspection reports and complaints.
- Drop in on the daycare unexpectedly occasionally to see what goes on.
- Always ask the daycare provider if they are on probation or if there are issues with their license.
- Ask about the daycare’s disciplinary policy.
- Ask about the child-to-staff ratio, as accidents are more likely to happen when staff are responsible for too many children.
Most daycare facilities have insurance that provides medical benefits without a claim for liability being made. Before filing a personal injury lawsuit for your child, you should present a claim to the insurance carrier, but it may be a good idea to have a personal injury lawyer review your proposal to make sure you are not waiving your child’s rights. Any claim should protect your child, including medical costs and compensation for disability or pain and suffering. Because a child cannot sue in his or her own name, a parent or other adult brings the claim on the child’s behalf, and a court has to approve any settlement of a minor’s claim. A guardianship estate is generally required when a larger recovery has to be held for the child, while up to $10,000 can be paid to a qualified family member without appointing a representative (755 ILCS 5/25-2).
Swimming Pool Accidents
While swimming pools are a great way to cool off and provide hours of family fun, they also cause thousands of injuries and drownings each year. On average, there are over 3,500 fatal unintentional drownings each year, or 10 deaths a day, and thousands more are injured in non-fatal swimming pool-related accidents. Drowning remains a leading cause of death among children in the U.S. despite federal swimming pool regulations and pool safety campaigns by the Consumer Product Safety Commission (CPSC). About one in five people who die from drowning are children under the age of 14, and for every one child who dies from drowning, another five receive emergency medical treatment for non-fatal injuries.
Drowning isn’t the only risk associated with swimming pools. There are numerous ways children can suffer injuries in swimming pools, including:
- Diving board injuries – Experts recommend that diving be restricted in swimming pools that are less than six feet deep. Every year, hundreds of swimmers seek medical attention for serious diving-related injuries such as traumatic brain injuries (TBI) and spinal cord injuries.
- Submersion injuries – Near-drownings can cause serious and sometimes life-long issues, including TBIs, neurological issues, and pulmonary damage.
- Circulation entrapment injuries – These occur when a swimmer, especially a smaller child, is trapped by the suction of a swimming pool drain. These injuries are often severe, including disembowelment and amputation.
- Slip and fall injuries – The areas around swimming pools are naturally slippery, often resulting in injuries such as bruises, lacerations, and fractures.
Swimming pool accident claims can be confusing, as there are many different factors that come into play, including whether the pool was public or private, whether the pool owner was following all appropriate regulations, and whether negligence was at play. Whether the pool was public also affects your timing, because a claim against a park district or municipal pool runs on a much shorter deadline than a claim against a private homeowner. If your child was injured in a swimming pool accident, an experienced injury attorney can review your case and pursue compensation from whomever may be at fault.
Flame Burns
According to the American Burn Association (ABA), approximately 500,000 people are treated for burn injuries every year. Burns are not only extremely painful, they can result in serious side effects such as infections, surgeries, permanent scarring, disfigurement, disability, and even death. Of the patients injured by burns who were admitted to burn centers, 73% suffered their burn injuries at home. Flame burn injuries are most commonly caused by the following:
- Fireplaces
- Candles
- Lighters and matches
- Gas flame stoves
- Grills and/or bonfires
- House fires
Parents should never leave grills, bonfires, candles, stoves, or fireplaces burning unattended around children, and lighters and matches should be kept well out of reach. Smoke detectors should be installed in multiple areas of the home and kept in good working order.
Children often suffer flame burns due to the negligence of others or by coming into contact with a defective product. If a defective product is found to be the cause of a child’s injuries, the manufacturer and anyone in the chain of distribution could be held liable in a product liability claim. A faulty fireplace or a defective protective shield can burn a child who would otherwise have been protected, and house fires started by faulty appliances or wiring put the entire household at risk. If an adult tasked with caring for a child allowed that child to be burned through negligence – such as letting a child play with a lighter or go near a hot grill or stove – the adult could be found liable due to a breach in the duty of care.
Lead Paint Poisoning
Lead is a toxic substance that can cause serious injuries to the kidneys and brain and is especially dangerous to young children whose neurological systems are still developing. Exposure to lead paint is the most common cause of lead poisoning and is often seen in homes built prior to 1978, older furniture, and toys manufactured outside of the U.S.
Lead poisoning occurs progressively, as lead levels build up in the body over an extended period of time. Typically, lead in the blood is not detected until levels are high, when kidney and nervous system damage is found, but even low-level lead exposure can cause permanent brain damage in children. When lead levels in the blood are dangerously high, seizures, unconsciousness, and even death are possible. Many times there are no symptoms, but some symptoms of lead poisoning can include:
- Poor muscle coordination
- Decreased muscle and/or bone development
- Learning disabilities
- Speech difficulties
- Behavior problems and disorders
Illinois does not require every trace of lead paint to be stripped out of a property, but it does require an owner to deal with a lead hazard once one has been identified. The owner has to mitigate it, either by remediating the surface, containing it so children cannot reach it, or removing or covering it, within 30 days when a child under six or a pregnant person lives in the unit and within 90 days otherwise (410 ILCS 45/9). When an owner or a manufacturer does not take those precautions and a child is harmed, parents can pursue compensation on the child’s behalf. Lead cases usually run on the general two-year personal injury deadline (735 ILCS 5/13-202), which for a child does not begin until the child turns 18 (735 ILCS 5/13-211), though they often turn on when the exposure and its effects were discovered. That makes early advice worthwhile.
Strangulation and Window Cord Choking
Strangulation and choking are the leading causes of unintentional death in children under the age of three. While younger children have a higher risk, each year nearly 900 children aged 14 and under pass away from some sort of airway obstruction. The Consumer Product Safety Commission (CPSC) warns parents of the dangers posed by window blind cords, necklaces, drawstrings on clothing, swing sets, ribbons, crib bumpers, and toy cords. The biggest risk to children, however, is window blind cords and the cribs, toys, and furniture placed too closely to them – children will play with anything they can get their hands on, and when a cord gets tangled around a child’s neck, the results are often deadly.
Window blinds and shades that come with cords are one of the top five hidden household dangers to children, according to the CPSC. Between 1990 and 2015, over 16,000 children were treated in emergency rooms for injuries related to window cords – an average of two children every day. Between 2012 and 2017, the CPSC reported 50 fatalities due to window blind cords, prompting window blind manufacturers to adopt voluntary standards in 2018 that put window coverings without dangerous cords into the retail market.
Preventing Cord and Strangulation Accidents
Child-proofing the home is one of the most important steps a parent can take. Parents should ensure that cribs, furniture, and toys are placed well away from windows with cords and blinds, and should also do the following:
- Use a cord cleat to keep window cords out of reach
- Use window cord “wind-ups” or cord shorteners to keep cords from hanging down
- Ensure that window blinds have tension devices to keep cords taut
- Use safety tassels to prevent a child from becoming entangled in the cord
Liability in Strangulation and Cord Choking Incidents
When your child is under the care of another person, such as a babysitter, nanny, or other caregiver, that person is legally required to provide a reasonable standard of care. Hazards should be kept away from children, and children should be supervised to prevent an accident. When a caregiver fails in this duty and your child is injured, they may be found legally liable for your child’s damages. Product manufacturers also have a duty to provide safe products; when a product is defective and causes injuries to a child, anyone in the chain of distribution could be held liable. Strangulation injuries are often catastrophic, as asphyxiation may cause brain damage and permanent disability, and because strangulation is a silent killer, many children suffer a wrongful death. Parents and guardians may be able to pursue a wrongful death claim against the negligent party, whether that is a product manufacturer or a negligent caregiver.
Medication Errors
Medication errors in children are a common occurrence. According to a study by the American Academy of Pediatrics (AAP), every eight minutes in the U.S. a child receives the wrong medication or the wrong dosage of a medication. Unfortunately, medication errors in children have the potential to cause greater harm than a medication error in an adult, with the results often being catastrophic. The most common medication errors occur when a child is prescribed opioid analgesics or antibiotics, but they can involve any type of medication. The most common types include:
- Improper dosage
- Misdiagnosis
- Prescribing the wrong medication
- Failing to take a proper medical history
- Using the wrong medication route
- Improperly preparing a medication
- Incorrect time of dosage
- Documentation errors
- Failure to monitor a child after receiving a medication
- Poor communication between medical providers
The vast majority of these errors are due to medical negligence. Doctors must be more careful when prescribing medications to pediatric patients because most medications are packaged, prepared, and formulated for adult patients; altering or recalculating dosages increases the chance of errors; communication errors between medical staff can cause mix-ups; physicians who do not routinely treat children may lack the training and reference materials to properly prescribe for a child; and children’s developing bodies may not be equipped to tolerate specific medications. If your child was injured due to a medication error because of a healthcare provider’s negligence, you may be able to pursue damages for medical expenses, long-term care, pain and suffering, lost wages, disability, and wrongful death.
Bicycle Accidents
Learning to ride a bike is a rite of passage for children, but cycling is not without risks. According to Stanford Children’s Health, 254,000 children are injured and 100 are killed each year in bicycle-related accidents. Most bicycle accidents are minor, but when a motor vehicle strikes a child, the results can be catastrophic. Fractures, head and neck injuries, nerve damage, lacerations, and traumatic brain injuries are among the most serious injuries a child may sustain. According to the National Highway Traffic Safety Administration (NHTSA), children under the age of 15 accounted for 7% of all cyclists killed in 2017.
When a motor vehicle strikes a bicycle, it isn’t always clear-cut who is at fault. Illinois follows what is often called the tender years doctrine, under which a child under the age of seven is treated as incapable of negligence and cannot be blamed for contributing to an accident. For children aged seven to 14, the law starts from the same presumption, but the opposing party can overcome it with sufficient evidence in court. A jury weighs the age, experience, mental capacity, and intelligence of the child in deciding what share of fault, if any, the child bears. One exception matters: a child engaged in an activity normally reserved for adults, such as operating a motor vehicle, can be held to an adult standard of care.
Filing a Claim for an Injured Child
It is always frightening when your child is involved in an accident. The first thing you should always do when your child is injured is to get them medical attention; once they are safe and stable, then you can begin to think about the legal aspect. Whether you have a valid lawsuit really depends on the unique circumstances of your child’s case, and the best way to find out is to contact an experienced personal injury lawyer.
It is not recommended to simply trust the insurance company to take care of you without an attorney on your side, as this can be detrimental to both your child’s recovery and legal case. The insurance adjuster aims to pay as little as possible for your child’s injury claim, which is why your attorney’s guidance is essential. For example, you should never sign a form, such as a medical authorization form, that was not approved by your attorney; medical authorization forms permit the insurance company to access your child’s in-depth medical history in search of any details that could be used against your claim.
Illinois Statute of Limitations for Minors
In Illinois, an adult generally has two years from the date of an accident to file a personal injury claim (735 ILCS 5/13-202), and missing that deadline generally ends the claim. Children get more time. Because a child under eighteen cannot file suit on his or her own behalf, the two-year clock does not start until the child turns eighteen, which gives the child until age twenty to file (735 ILCS 5/13-211). Medical malpractice works differently again: a claim must be brought within eight years of the act or omission, and in no event after the child’s twenty-second birthday, whichever comes first (735 ILCS 5/13-212).
One deadline is much shorter and catches families off guard. If the claim is against a public school, a park district, a municipal pool, or another local government body or its employees, it generally has to be filed within one year of the injury under the Tort Immunity Act (745 ILCS 10/8-101), not two, and the extra time children normally get does not work the way most parents would assume. Because so many childhood injuries happen at public facilities, it is worth having the deadline that applies to your child’s situation confirmed early rather than assumed.
Evidence and Damages
While the majority of injury claims are resolved via settlement, and a small percentage at trial, you must have a strong foundation of evidence for your claim in any case. Evidence should be collected quickly, and time-sensitive forms include photographs and witness statements. Take photographs of the accident scene, the vehicles involved, and your child’s injuries if you can do so safely, and have witness statements recorded as soon as possible while the incident is fresh. Experienced attorneys are able to gather this evidence while you care for your child. If a lawyer determines that you may have a legal case, they will gather evidence and question witnesses before memories fade, and work within the statute of limitations so your child does not miss the opportunity to receive compensation.
Just as each personal injury lawsuit is unique, so is the compensation for damages your child may receive. Damages are awarded to remedy the physical, psychological, and financial distress a plaintiff suffered due to their injuries. This can include compensation for medical bills related to the accident and ongoing treatment, lost wages, pain and suffering, emotional distress, disfigurement and disability, loss of enjoyment of life, wrongful death, and punitive damages.
Talk With 844-SEE-MIKE
If your child has been injured in an accident because someone else was careless, you can talk it through with us before deciding anything. We are a Chicago-based injury firm representing individuals and their families, we will keep you informed at every step, and we are prepared to take a case to trial when that is what it needs. You pay nothing unless we recover money for you. Contact 844-SEE-MIKE for a free consultation about your child’s case. This article is general information, not legal advice.
