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Minor's Claims in North Carolina

When a minor (person under eighteen years old) is injured in a car accident or other type of accident, the claim raises several complications that are not present when the injured person is an adult. Some of these differences include that that a landowner (e.g. a grocery store, shopping mall, amusement park) in some instances has a different duty toward a minor. Further, a child can sometimes recover against a landowner even though the child is a "trespasser," if the child can satisfy the elements of the "attractive nuisance doctrine." A child also has a different statute of limitations for his claim, is held to a different standard for "contributory negligence," and has different procedural rules (e.g. the requirement for a "guardian ad litem").

There have been several recent cases and statutes addressing the rights of minors in North Carolina. In one case from the North Carolina Court of Appeals, a twelve-year-old girl was on the defendant's (Town of Blowing Rock's) property, and attempted to cross a stream. She lost her footing and was swept downstream, and over a waterfall. She sued the defendant for failing to post appropriate warnings and to take adequate measures to prevent visitors from attempting to cross the stream. (Other visitors had been injured near that location only two weeks earlier.) The jury ruled for the defendant, but the Court of Appeals reversed, on the basis that the jury should have been instructed that that defendant's duty toward visitors on the property depends on whether children visit the property. (More specifically, the court held that "the jury must be instructed to consider the known or reasonably foreseeable characteristics of lawful visitors when determining whether the defendant has discharged its duty to exercise reasonable care in maintaining its property for the protection of the plaintiff.") In January 2012, however, the North Carolina Supreme Court reversed, on the basis of the dissenting opinion. The effect ofthis ruling is not yet clear.

In another case, the child alleged that she was injured by a defective seatbelt. The car manufacturer argued that the product liability claim was barred because the minor misused the seatbelt. The Court of Appeals held that the manufacturer cannot raise this defense when the plaintiff is a minor under seven years old. Both of these cases are on appeal to the North Carolina Supreme Court.

The Legislature recently enacted a statute regarding the "attractive nuisance" doctrine. This doctrine essentially holds that the landowner has a duty of reasonable care toward children trespassers on his property, under certain circumstances. The recent enactments predominately codify the common law. The Legislature also enacted a law which affects the statute of limitations for minors filing medical malpractice actions. (In a nutshell, after the child turns ten years old, he is held to the same statute of limitations to which an adult is held.)

In a case decided on March 22, 2012, the federal court held that Medicaid's lien against the settlement of the minor's claim attaches only to that portion of the settlement reflecting medical expenses. Armstrong v. Cansler.

John Kirby is currently drafting a lengthy Article on the prosecution and settlement of minor's claims in North Carolina. Although the Article is not yet complete, the outline of the current draft of the Article is set forth below.


Forthcoming Article on Minor's Claims and
Settlements in North Carolina

I.      SUBSTANCE OF THE CLAIMS ARISING FROM INJURY TO MINOR
     A.      Minor's Claims
           1.      Substantive Claims
                 a.      Landowner Liability
                       i.      Attractive Nuisance Doctrine
                 b.      Minor's Claims against Other Caregivers and Other Persons
           2.      Defenses to Minor's Claims
                 a.      Contributory Negligence
                 b.      Statute of Limitations
                 c.      Parent-Child Immunity
                 d.      Supervision by Parents or Other Adults
                 e.      Pre-injury Release
           3.      Minor's Damages
                 a.      Medical Bills
                       i.      Necessaries
                       ii.      Parent's Waiver of Claim
                 b.      Lost Earnings
                 c.      Liens and Subrogation Claims
     B.      Parents' Claims
           1.      Substantive Claims
           a.      Medical Expenses for Minor's Injury
                 b.      Loss of Services and Earnings of Minor
                 c.      Miscellaneous Claims of Parents
           2.      Whether Claim is Owned by Mother or by Father
           3.      Defenses to Parents' Claims
II.      PROCEDURES FOR FILING SUIT FOR MINOR
     A.      Guardian ad Litem      
           1.      Procedure for Appointment
           2.      Persons who may serve as GAL
           3.      Conflicts of Interest by GAL
           4.      Duties and Powers of GAL
           5.      Liability of GAL
           6.      Payment of Guardian ad Litem
     B.      Joinder of Claims
     C.      Res Judicata and collateral estoppel effect of minor's action
     D.      Minor's Attorney
           1.      Conflicts of Interest
           2.      Attorneys Fees
III.      SETTLEMENT OF MINOR'S CLAIM      
     A.      Persons Having Authority to Enter Settlement for Minor
     B.      Need for Court Approval
     C.      Repudiation of Settlement Pending Approval
     D.      Release of Claims
     E.      Procedural considerations
           1.      Procedural Vehicles
           2.      Notice of Proceeding
           3.      Presentation of Evidence at Hearing
           4.      Rulings on Motion for Approval of Settlement
           5.      Order Approving Settlement
           6.      Handling of Minor's Proceeds
                 a.      Judgments
                 b.      Settlements
                       i.      Payment to Clerk
                       ii.      Structured Settlements
                       iii.      Payment to GAL or others
                 c.      Implications of Settlement on Minor's Eligibility for Government Programs
     F.      When Order Approving Minor's Settlement may be Reversed, Overturned or Vacated












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