Tuesday, July 25, 2017

Who is Liable When Your Child is Hit by a Car?

Parenting is difficult - especially when you have active little ones. Young children do not have the same fears or instincts as adults, and children may walk or run out onto a busy street without comprehending the danger. Typically, if a pedestrian suddenly enters the road in front of another car and the driver does not have sufficient time to react, the driver is not liable for the pedestrian’s injuries either because the pedestrian assumed the risk of his or her behavior or because the pedestrian was the sole negligent party. But what happens if the pedestrian is a young child, or even an incompetent individual for that matter, who cannot comprehend the danger? Who is liable for the child’s injuries or the injuries the driver sustained in attempting to avoid the child?

Parenting Laws and Responsibilities in Florida

Under Florida law, a “caregiver” is defined as “a parent, adult household member, or other person responsible for a child’s welfare.” Ensuring that a child is well-cared for means that a caregiver must provide the following services to the child (if they do not, it is considered “neglect of a child,” a criminal offense in Florida):

  • Care;
  • Supervision; 
  • Food;
  • Nutrition; 
  • Clothing; 
  • Shelter, 
  • Medicine; and 
  • Medical Services. 

Further, a caregiver has a legal duty to protect a child from abuse, neglect or exploitation by another person. Florida courts have held that, during school hours, teachers qualify as “caregivers” under Florida’s statutes, and as such, must monitor a child to ensure he or she is safe and well.

Liability for Pedestrian Accidents Involving Children

If a child is hit by a vehicle in Florida, who is liable for that accident and any resulting injuries depends on the facts and circumstances of the incident. For example, what if your child is on a school field trip while lawfully crossing the street in a crosswalk under his teacher’s supervision? Is the child’s teacher and/or school negligent if a car runs through the crosswalk and hits your child because the driver was not paying attention? Probably not. However, if a teacher has his or her back turned to a young child and that child runs into a busy road chasing a butterfly, the teacher can be held liable as that child’s caretaker for failing to supervise the child.

The driver may also be held liable if she was driving too fast to stop under the circumstances, was not paying attention to the road, and did not attempt to avoid the accident. But what if your child was hit when he was 15 years old, and he ran into the middle of the road as part of a game with his friends? In this case, you likely could not hold a caretaker liable for your child’s injuries, as he was old enough to assume the risk of the accident and old enough to be found negligent for those actions. When the accident involves a young child, however, there is almost always liability on the part of the caretaker if the child is injured by a motor vehicle while under that person’s care.

Florida Comparative Negligence Law

Each state adheres to its own laws for determining fault when it comes to pedestrian v. car accidents; although, this may differ depending on whether the child was old enough to understand the nature of her actions, typically around 7 years old. While some states prohibit recovery if one party was more than 50% liable for the accident, a small number of states will prohibit recovery if you were even 1% at fault for the accident. Florida, however, follows what is known as a “pure comparative fault” system. Florida law states that “contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and non-economic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” In other words, if your personal injury attorney successfully litigates your claims, then whatever amount you are awarded for injuries, say $10,000, is reduced by your percentage of fault. For example, if the jury found that you were 10% at fault for the accident, then you would only be able to recover $9,000, a 10% reduction in your original award.

Accordingly, if a ten-year-old child was hit by a speeding motor vehicle outside of a crosswalk while on a school field trip, the jury will have to determine the percentage of liability to be born by each party. The jury may find that the driver was 40 percent liable, the teacher 50 percent liable for negligent supervision, and the child 10 percent liable for her negligent actions. This means that your recovery would be reduced by 10 percent due to the child’s negligence, but it is not a bar to recovery itself.

Florida Coverage for Medical Bills

Luckily, Florida is what is known as a “no-fault” state, which means that drivers are required to carry personal injury insurance as a part of their auto insurance policy. This insurance becomes primary after a car accident and covers emergency medical expenses as well as certain additional medical bills, lost wages, and incidental expenses after a car accident. Every passenger in a vehicle is eligible to be covered by the driver’s no-fault insurance policy, and a pedestrian who is hit by a driver is also eligible to receive no-fault benefits. This means that your child’s initial emergency medical bills should be covered by the driver’s no-fault insurance, but there is generally a cap of $10,000 on the policy. If the child, therefore, suffered from severe injuries or is experiencing post-traumatic stress as a result of the accident, you should consult a Florida personal injury attorney to discuss your options for recovery.

Contact a Clearwater Personal Injury and Child Protection Attorney Today

If your child was injured by a motor vehicle, contact the Dolman Law Group immediately. Their trained personal injury and child protection attorneys can help answer your questions and fight for you and your child’s right to compensation. They are your premier personal injuries lawyers in the greater Tampa Bay area. Call them today at 727-451-6900 or contact them online for a free, no-risk consultation.