Proving Fault in Personal Injury: When a Child Gets Hurt

Apr 06, 2015

Premises liability and negligent supervision of children are the two key factors when determining fault in a personal injury case involving a child.  Premises liability is the liability of the operator, caretaker, school, owner, etc.on whose property the accident took place.  If the child was injured on said property, you must show the following in order to prove the liability of the defendant:

1)      The defendant didn’t exercise the correct amount of care.

2)      The child was injured in a foreseeable manner.

3)      The defendant was in charge of the property.

4)      The defendant’s lack of care was a major cause of the injury to the child.

5)      The child was the type of person who the defendant could readily expect to visit the property.

Be it a public playground, a jungle gym at school, a play place at a fast food chain, an amusement park, or any other locations with the intent to encourage children to play, if you can prove the lack of upkeep caused a child’s injury, then the property owner is at fault.  Say, for example, you are at the park with your child, and she is climbing her way across the monkey bars and one of the bars breaks, she falls and fractures her arm, then the property owner would be at fault.  After calling your child’s pediatrician for advice, you should take a picture of the monkey bars quickly – for all you know a park official may see the broken bar and have it welded safely back in place by the time you are able to return.  Obviously the safety and well-being of your child is the priority, but most people have smartphones nowadays, or at the very least have a camera on their old fashioned flip phone, and thus you may pass up a valuable opportunity to obtain an evidentiary advantage.

In the aforementioned scenario, you are responsible for your own child.  The equipment was faulty, which is why you are not at fault, and the city or municipality which owns the land is.  Now we come to occasions in which you are not in attendance, for example, at school or daycare.  Should the equipment be fully safe and up-to-inspection, and your child is injured due to lack of adequate child care, then the responsible party is whomever was supposed to be supervising your child.  This is called negligence.  You must prove the following legal elements in order to hold the caretaker liable for damages:

1)      Duty: A legal duty owed by the defendant (i.e. a babysitter or daycare center) to the plaintiff (you) must exist in every successful injury claim.
2)      Breach: The plaintiff must prove the defendant breached a legal duty (i.e. the babysitter pays more attention to his/her phone than your child).
3)      Causation: The defendant must be the cause of the plaintiff’s harm or injuries.  This element is frequently obvious in the majority of personal injury cases (i.e. your child electrocutes him/herself by sticking a fork in an electrical outlet while your babysitter is in the other room on the phone).
4)      Damages: The plaintiff must incur actual damages – usually monetary – originating from the accident.  Such damages include but are not limited to: medical bills, lost wages due to time missed at work, property damage (i.e. replacing that electrical socket, which has now shorted out, or even worse, caused a minor fire), etc.

In order to prove fault, you must remain steadfast in your story, tell the full truth, and be genuine.  During a deposition, what you say in response to the defendant’s lawyers’ questions can be used to rebut (or refute) anything you say on the stand if it comes to a jury trial, so continuity is imperative.  Good defense attorneys will ask you questions very quickly, word them very specifically, and try to throw you off in such a way as to frustrate and/or confuse you.  Without the assistance of your own legal counsel, you may be tricked into saying something which you do not mean, which they will then use against you in your case.  That is why it is highly recommended that not only in any personal injury claim, but especially ones involving children, you should consult an attorney.

We at ACML have attorneys who specialize in these types of cases, and we don’t get paid unless you do.  Please feel free to contact us for a complimentary consultation at (800) 678-3318.  Alternatively you can visit us in person at our physical location of 226 North Fifth Street, 5th Floor, Columbus, OH 43215.

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Worker’s Comp Lawyers Columbus, Ohio - Agee Clymer

140 E. Town St. #1100
Columbus, OH 43215