Child Injury and Accident Legal Questions & Answers
Injury victims need accurate information on how to pursue their accident claim. If you have been injured in an accident through no fault of your own, you may have a lot of questions. Below are some of the initial questions that many of our clients have when they first contact Davis Law Group. The questions below may address some of your initial concerns.
If you don't find the answers to your questions here, feel free to contact us at any time to speak with someone about your case. There is no obligation in setting up a free consultation with our attorneys.
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Why Can’t You Buy Kinder Surprise In America?
It’s a treat that’s instantly familiar to anyone who spent time outside the US as a child: a foil-covered egg about the size of a real chicken’s egg, with a fragile shell made from layers of milk and white chocolate surrounding a small, yellow plastic oval. Pop open that fake yolk, and you’ll find a series of tiny plastic parts, designed to be assembled into an ingenious toy with bright colors and moving parts.
Cross the border into America, and the Kinder Surprise becomes contraband: the Federal Food, Drug, and Cosmetic act banned “the sale of any candy that has embedded in it a toy or trinket” back in 1938. Despite the legal limitations, the treat has been so sought after in the U.S. that armed officials have seized tens of thousands of the eggs at the U.S.-Canada border and federal agents have raided stores suspected of selling illicit candy.
Seattleites have made headlines after being busted at the border; many visitors to Canada don’t realize that smuggling these candy products carries a fine of up to $2,500 per egg. The eggs’ illicit status is so legendary that the Moms Demand Action campaign against gun violence posed a child holding a Kinder egg next to a child holding an assault rifle, telling viewers that only one of the two items had been banned in America for the purpose of protecting children.
Was The Food And Drug Administration Right To Ban Kinder Eggs?
Various attempts to work with the Food and Drug Administration to create an egg that meets U.S. Safety standards have been less than successful, in part because of the act’s confusing rules and in part because U.S. companies have struggled to replicate Kinder’s combination of high-quality chocolate, well-designed toys, and the nostalgia factor of parents who pass the tradition of eating Kinder Eggs on to their children.
A study of the European Registry of Foreign Bodies Injuries found that only 6 percent of parents believed it was appropriate to give Kinder Eggs to children below the suggested age and the majority were sufficiently aware of the dangers of leaving their children unattended around small objects like toys, staples, and coins.
Have There Been Deaths Due To Kinder Eggs?
French police have now confirmed that a 3-year-old girl died near Toulouse after suffering from airway obstruction after putting a “toy with wheels” in her mouth. The eggs come with warnings to parents against giving the eggs to children under three; they are typically marketed at children aged five to ten. This is not the first time that a child has died after choking on a small part of a Kinder Surprise toy.
In this case, since the child choked on the toy within the plastic “yolk” and not on the container itself, the legal battle may revolve around whether the toy was too small for a child of that age or whether the fact that the toy came encased in chocolate led the child to believe that it was safe to eat.
The author of this article still has her collection of metal soldiers from Kinder Eggs—which were purchased and consumed legally in a European country.
Can I sue someone for smoking near my child?
It’s true that secondhand smoke comes with a lot of risks, especially for young children. Unfortunately, in a case like this, it would be very difficult to prove that your child has been damaged in a measurable way. The risks of secondhand smoke are hard to measure objectively and the medical consequences might not be apparent until years after the exposure has taken place.
If you believe that your child is in danger from secondhand smoke, the safest thing to do is remove that child from the situation. If your child is exposed to secondhand smoke in an area where no one should be smoking, like a child care center or a school, you might need to report the smoker to whoever is in charge of managing that facility.
This would be a very difficult case to litigate. A personal injury attorney would probably not take on any secondhand smoke case unless there were clear and severe injuries and a specific person or entity was clearly at fault.
How is Negligence Established in Child Injury Cases?
Washington's Law of comparative negligence means that the proportional share of fault of all potential parties must be considered, even if it involves the conduct of a child. This means a child can be held negligent and therefore wholly or partially responsible for that child's injuries and damages. Washington state's law of comparitive negligence allows for a person to be compensated for their bodily injuries and other damages even if the plaintiff is found partially responsible for the injuries he or she is claiming. For more on this, read our recent blog post on Washington state's comparative negligence laws.
In Washington, the issues of child's degree of negligence may be also called "contributory negligence." But there are certain limitations when it comes to accidents and injuries involving negligent children. First, the law in Washington is that children under the age of 6 cannot be held negligent as a matter of law.
The Washington State Supreme Court decided that a child under the age of 6 does not have the mental capacity to be negligent. This means any time a child under the age of 6 has a legal claim for injuries caused by an accident, the child is deemed fault free for purposes of decideing which parties negligently caused that child's injuries.
Washington State Law Treats Child Injury Claims Differently
Children who are 6 years old and older may be deemed negligent and thus legally responsible for their own injuies. But there is one important difference; in Washington state, children are not to be judged by the same standards that apply to adults.
A child is negligent if that child fails to exercise the ordinary care that "reasonably careful child of the same age" would exercise under similar circumstances. This is an important distinction when it comes to pursuing a child injury claim. For example, it means that a 7-year-old child cannot be judged according to the same standards that might apply to a 10 year old child.
The standard of negligence is also based heavily on the child's individual characteristics and traits. Conceivably, the actions of a special needs or mentally disabled child should only be judged based on the expected reasonable conduct by another child of the same age and/or mental capacity. The same goes for children who may be advanced or high functioning.
In the end, a judge or jury will assess the level of fault that should be attributed to the child, which can have an impact on a jury verdict being awarded to the child.
How Does a Child Personal Injury Claim Work?
Much of the personal injury legal process is the same for cases involving injuries to children as it is for those involving injuries to an adult. However, there are some differences between the two types of claims that parents of an injured child should understand before the pursue a claim.
First, the law generally assumes that children are not capable of possessing the same well-rounded judgment that adults are capable of possessing, and therefore there are differences in some of the rules and guidelines that are in place for child injury claims.
It is generally acknowledged that a parent or guardian is often responsible for medical bills of an injured child, and therefore that person has a right to recover compensation for any medical expenses paid on behalf of an injured child. Also, a parent is permitted to negotiate the claim on behalf of the injured child, as a person is not capable of negotiating a claim until they are 18 years old.
Would my child have to bring a lawsuit himself/herself?
Most cases - an estimated 98% or more - involving injuries to children do not require a lawsuit. However, if a lawsuit is necessary, a guardian must be appointed by the court to bring the lawsuit on the child's behalf.
Typically the guardian will be the child's parent, but any person who is of sound mind and good judgment can act as the guardian for the child for purposes of the lawsuit. Your lawyer should explain to you the process of appointing a guardian so that a lawsuit may be commenced.
Will my child be traumatized if we bring a lawsuit for their injuries?
Not usually. Lawsuits are only brought in a small number of cases - usually less than 2% of all cases. If a lawsuit is filed, the child's deposition may be requested depending on the child's age and level of maturity.
This can sometimes be an overwhelming and intimidating experience for a child, which makes it even more important that the child understands the nature of the situation.
If a lawsuit is involved, it is probably in the best interest of the parent or guardian to consult with an attorney who has experience in representing injured children and therefore understands how to make this process as easy and trauma-free as possible.
What should a parent do when their child is injured?
A parent should obviously tend to the needs of the child. That means making sure prompt medical attention is provided. Once that is accomplished, a parent should try to gather information about what happened. The proper authorities should also be contacted, like the police in case of a car accident or animal control in the case of an animal bite or attack.
The names of witnesses should be written down. Photographs of the scene and/or of the child's injuries is also a good idea. If a claim is being pursued, then you should also file a claim with the relevant insurance carriers involved. For serious injuries, or those that may involve permanent injuries or disfigurement, a parent should consult a lawyer about the child's rights.
What is the likelihood of going to court in a child injury case?
Most child injury cases settle without going to court. Statistically speaking, the chance of a personal injury case will go to trial is less than 5%. The likelihood that a personal injury case involving a child is probably even smaller.
In cases where the evidence of liability against the defendant is strong and the injuries are fairly serious, the likelihood of the case going to court will be even smaller.
How soon must we bring a lawsuit on behalf of our child?
In Washington the time to bring a lawsuit is usually 3 years from the date of loss. This time period is called the statute of limitations. For children however, the statute of limitations is tolled until the child's 18th birthday. That means the child can bring a lawsuit up until the child's 21st birthday. However, it is usually not recommended that the child wait this long to settle the claim or file suit. Each case is different however, so you should consult with counsel about the best time to conclude the claim or file a lawsuit.