Personal Injury

Can a Minor File a Personal Injury Claim?

When a minor is injured, there are usually special procedural issues to consider when making a personal injury claim (especially if the matter is taken to court).

Minors are just as likely as adults to be injured in accidents. When a minor suffers injuries as a result of someone else's negligence, can the minor bring a personal injury claim? Let's look at a few examples to see how this question might be answered.

John Smith is driving the family sedan with passengers Mary (his wife) and his minor children Johnny (8 years old) and Sara (17 years old). Bob Jones rear-ends the Smith vehicle at a stop light, causing significant injuries to all Smith family members. While John and Mary Smith can bring claims against Mr. Jones on their own behalf, the same is not true for minors Johnny and Sara Smith.

Minors and "Legal Standing"

The reason Johnny and Sara cannot bring their own claims is that minors do not have "legal standing" to sue. In most jurisdictions, the only way a claim can be brought for a minor's injuries is to ask the court to appoint a "next friend" or "guardian ad litem" to serve as the minor's legal representative. The appointment process is typically routine and only requires a small amount of paperwork. Once appointed, the minor's legal representative has the authority to file a personal injury lawsuit, pursue the claim in court, and take the case through to a final settlement or judgment.

While few would argue that 8-year-old Johnny Smith possesses the skill and judgment to make the kinds of decisions required in a personal injury lawsuit, it is certainly plausible that a mature and intelligent 17-year-old Sara Smith might be able to make such decisions on her own behalf, especially with the advice and guidance of her experienced personal injury attorney. However, the law does not allow these types of individual determinations to be made. Instead, the law imposes an arbitrary distinction between "minors" who are under age 18 and "adults" who are age 18 and older. No minor, no matter how smart and mature she may be, is recognized in the eyes of the law as a person who has the capacity to bring a claim on her own behalf. (Note: In most states, a legally emancipated minor can file a lawsuit on his or her own behalf. Learn more about emancipation of minors.)

The Guardian Ad Litem's Role

The role of a "next friend" or "guardian ad litem" is an important one, because this person must make a whole host of tactical decisions on the minor's behalf when it comes to the lawsuit.

One of the most important decisions to be made is whether to accept a particular personal injury settlement offer. Typically, the next friend or guardian ad litem will be in contact with the minor's parents throughout the suit, and the subject of settlement will invariably arise. Regardless of the parents' wishes or the amount of pressure they may attempt to exert on the next friend or guardian ad litem to accept a settlement offer, decisions of this nature must be made solely in the best interests of the minor.

When a settlement is reached or a court judgment is obtained, the proceeds cannot simply be turned over to the minor. Rather, the next friend or guardian ad litem is responsible for placing the proceeds in a safe investment to be held on the minor's behalf until the minor turns 18. This process is governed by statute or court rule in most states, and requires the court's approval as well. All of these measures are designed to protect the settlement proceeds from the minor's parents (and from the minor him/herself).

As a matter of public policy, reasonable minds may differ on the fairness or wisdom of preventing an intelligent, mature minor (or her parents) from exercising control over key decisions in -- and settlement proceeds from -- a personal injury claim. In practical terms, however, there is certainly merit in a process that always keeps an objective eye toward the minor's best interests.

Learn more about who can file a personal injury claim.

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