Homeowner’s Insurance – What If My Child Is Hurt At Another Family’s Home?

If your child sustains an injury while at another family’s house and there is a homeowner’s insurance policy in effect, your child’s injury claim will almost certainly be covered. Don’t delay in reporting the injury, however, because all policies have a provision that says if timely notice is not given to the insurance company they can deny coverage.

After making sure the injury is reported to the insurance company (preferably in writing), take time to assess what type of insurance claim will be appropriate. There are two types.

The first type of claim under homeowner’s insurance. Many homeowner’s insurance policies contain “Med Pay” or “Medical Payments” coverage. “Med Pay” is no-fault coverage, which means it is available to help compensate you for medical expenses related to your child’s injury no matter how the injury took place. In other words, there is no requirement that you show that anyone was negligent. If you can show that your child was injured on the other family’s property, you can recover under the “Med Pay” coverage.

“Med Pay” is sold in increments and a family may have $1,000, $2,000, $5,000, $10,000, $25,000, $50,000, or more coverage in place. The way this type of coverage works is that you submit your child’s medical bills to the homeowner’s insurance company as you receive them. Some medical providers will even handle the submissions for you. Or, if you prefer, you can have the insurance company mail you (or your attorney) a check for the cost of your child’s medical treatment. I recommend the latter approach because it allows you (or your attorney) to negotiate with your medical providers. Often providers will offer a discount to settle your child’s bill if you ask. You can save money that way and use what you save to pay for your client’s future medical care or other injury related expenses.

The second type of claim under homeowner’s insurance. The second type of coverage is bodily injury liability coverage. This pays only when the owner or someone in the owner’s family is found to be at fault. You have to be able to (usually with the assistance of an attorney) prove that the owner or representative of the owner did something (or failed to do something) that constitutes negligence and that negligence led to your child’s injury.

Even if the homeowner has admitted fault, keep in mind that is is very common for stories to change after a little time goes by. Do your child a favor and document everything. If the homeowner admits fault, get that on a recording or in writing. Get them to admit the specifics of what they did wrong. This will protect you in the event they later change their story (and you would be amazed at how often stories change.)

A bodily injury liability claim allows you to recover more damages than in a “Med Pay” claim. “Med Pay” pays only for your child’s medical expenses. A liability claim pays you for medical expenses, any related lost wages, human losses (pain and suffering), and any damages that flow from your child’s injury.

One question that you may have is whether your child can be held responsible for causing their own injury? This issue arises if your child was doing something that perhaps was a little foolish at the time they were hurt. The answer is: it depends. It depends on the age of your child.

In the Georgia common law there is a legal creature known as the “tender years doctrine.” This doctrine holds that children under a certain age can not be charged with contributory negligence (fault) or assumption of the risk. The younger the child, the less likely they can be found to have contributed to their own harm.

For example, there is a case that holds that a 4 year old child is presumed incapable of negligence. But there is also a case that holds that a child that is 5 years, 10 months old does not get that same presumption. Exactly when a child becomes capable of contributory negligence is not clear in the case law. It seems safe to say that if a child is older than 6 years they might be charged with contributory negligence. But the issue is one for a jury to decide and is very fact specific.

So essentially, with very young children (4 and under) it is clear that they can’t be blamed for hurting themselves. With children older than 6, it is less clear. It will come down to what the courts have called a “subjective, individual standard of care for children.” In other words, the court or jury will have to examine the capacity of the child in question and their behavior and make a judgment call about whether they were capable of preventing the harm to themselves or if the adult in the situation should be charged with full or partial responsibility.

An example from a recent case I handled may help clarify how the doctrine of tender years works in practice.

My client, a 5 year old girl, was dropped off at the home of the Defendant. The Defendant had agreed to babysit my client.

The previous Sunday was Easter Sunday and my client’s mother had pressed out the child’s hair for the occasion. When the mother dropped her daughter off at the Defendant’s house, her hair was up in a ponytail. 

On the evening of the loss, the Defendant loosed the pony tail and let the girl’s hair out and shortly after gave her a lit candle to take into the house (the Defendant was outside talking to a friend on the phone). My client went inside the house unsupervised and while inside her hair caught on fire.

What happened next shocks the conscience. After this 5 year old child was burned, the Defendant told no one, called for no medical attention, and hid the fact from her own husband (by putting panty hose on the girl’s head to conceal the burns). The Defendant put the child to bed and kept her quiet during the night (while she fussed) by giving her Motrin.

All that night, the following morning, and throughout the next day, the Defendant again told no one and called for no medical attention. She did not inform the child’s mother. It was not until nearly 24 hours later, when the child’s mother returned, that her mother discovered the burns. Immediately she called 911 for an ambulance.

In that case, the insurance company didn’t even bring up the tender years doctrine. But, had my client been 7 or 8 or older, the insurance company might have.

One final piece of information. Because “Med Pay” claims are no-fault generally you do not need an attorney if that is the only type of claim you plan to bring. Generally the homeowner’s insurance company will pay the bills up to the limits of coverage without much of a fight. There are exceptions but generally you should be able to handle that without the expense of an attorney. If, however, you believe there was fault, it would be worth your while to consult with an attorney. Keep in mind that the attorney fee on a bodily injury liability claim is paid from the settlement, not from you or your child, and that if there is no recovery there is no attorney fee. So it is a risk free call to the attorney.

If your child has been injured by the negligence of another and you believe there may be grounds for a bodily injury liability claim, please call me. I have been representing families for over 17 years right here in Georgia and would be honored to talk with you. 

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Attorney Pete Pearson practices Child Injury and Wrongful Death Law in the State of Georgia. Located in the Greater Atlanta Metro Area, he is available to help families all over the State of Georgia. He can be contacted directly at Six-Seven-Eight 358-2564 or by Email.

Child Injury – Dog Bite – Owner must take “reasonable steps” if has “superior knowledge”

(This is the 4th post in a Series of 4 on children and Georgia dog bite law. You may read the first 3 posts here, here and here.)

I told you in my first and second posts on this topic that the traditional rule in Georgia was the “first bite rule” and that rule was often viewed as a “one free bite” rule. I have also discussed how that rule has changed over recent decades.

One rationale behind the traditional “one free bite” rule was that the owner of a dog should not be blamed for an unforeseen and unforeseeable act of an animal. Proof of prior knowledge of the dog’s “vicious propensity” should be required before holding an owner responsible for injuries caused by the animal.

Recent court decisions, while upholding the rationale behind the traditional Georgia rule, have moved toward softening the application of it. Recent decisions have tended to replace the traditional rule with a new rule that places a duty on the owner to take “reasonable steps” to protect the public from a dog if the owner has “superior knowledge” of the dog’s vicious tendency even if the dog has never bitten in the past.

These recent court decisions have focused less on requiring the injury victim to prove a prior similar incident or attack and more on the owner’s knowledge of the dog’s aggressive temperament. Thus in recent years we have seen a relaxing of the traditional requirement that the injured person prove a prior similar incident.

Another avenue injured persons have used to hold an owner liable for injuries caused by a dog is a legal theory called “negligent undertaking.” The reasoning behind this theory is that if an owner voluntarily agrees to restrain a dog and then fails to do so properly and an injury results, the owner can be held liable even if there is no evidence of “vicious propensity or a violation of a leash law or ordinance.

Dog bite cases are very fact specific – by which I mean the outcome depends a great deal on many facts that are discovered after date of the bite itself as the case moves forward. The cases that interpret Georgia’s dog liability statute can be difficult to apply to a given set of facts.

If you have read this series of posts and have questions I hope you will contact me. I can be contacted here, or here, or here.

Child Injury – Dog Bite – Using Violation of Leash Law to Prove Vicious Propensity

(This is Part 3 in a 4 Part Series on children and Georgia dog bite law. You can read Part 1 here, Part 2 here, and Part 4 here.)

Happily,Georgia dog bite law has grown more favorable to injury victims over the last few decades. In 1985 the Georgia General Assembly (our state legislature) amended the dog liability statute to include the following provision:

“In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.”

The 1985 amendment relaxed the traditional Georgia rule that the owner or keeper of a dog had to have knowledge of the dog’s vicious propensity. It did not do away with that requirement altogether, however, instead it carved out an exception to it. The law since 1985 has been that if the injured person can show that the owner or keeper committed a violation of an applicable “leash law” than no actual knowledge of vicious propensity is required. Vicious propensity is inferred if the owner/keeper violates the leash law.

Subsequent appellate cases have interpreted the 1985 amendment to apply not only to “leash laws” but also restrictive ordinances that require an owner to keep a dog confined to the property.

The bottom line change with the 1985 amendment? If your child has been bit by a dog and you suspect the owner of keeper of that dog was violating a “leash law” or local restrictive ordinance, contact me so I can research the local leash laws and/or local restrictive ordinances. I can research city and county ordinances to see if (a) a “leash law” was in effect and (b) what the law requires owners/keepers of dogs to do.

Also keep in mind that some parks have rules that require owners/keepers to keep dogs (and cats!) on a leash. Stone Mountain Park, for instance, requires that all dogs and cats be kept on a leash no shorter than 6 feet. So even if the city or county in which your child was injured does not have a leash law, there may be other ways to establish that the owner/keeper had a duty to keep their animal on a leash.

Child Injury – Dog Bites – Georgia’s Misunderstood “One Free Bite” Rule

(This is Part 2 in a 3 Part Series on children and Georgia dog bite law.You can read Part 1 here, and Parts 3 and 4 here and here)

Georgia’s historic “first bite rule” didn’t mean quite what it sounds like. Though it may sound as if a dog had to have actually bitten a person in the past in order for an owner or keeper to be liable for injuries, that is not how the rule worked. What an injured person had to prove was that the animal had demonstrated a propensity to do the particular act that caused their injury.

The prior incident did not have to involve identical acts as the acts that led to the later injury. But there did have to be evidence of vicious propensity and the evidence that was required was a prior incident or incidents which would put a prudent person on notice to anticipate the event which occurred (the later injury).

Interestingly, if a dog is part wolf or other wild animal, there is a different rule. In that instance there is legal authority for holding the owner or keeper strictly liable – which means the owner/keeper is responsible regardless of the animal’s past history.

Another interesting tidbit is that since a cat is a domestic animal, cat bites or attacks are governed by the same set of rules as a dog.

Now back to discussing dogs! An owner or keeper is not liable if the dog has bitten or attacked a person in the past but that bite or attack was provoked by teasing or other actions that incited the dog to attack. Obviously young children some times do not know how to act around a dog and do things that the dog may respond to with fear.

This Public Service Announcement is a good training tool to use with children and should help them to know what NOT to do when they meet an animal.

Next time I post I will get into the relaxing of the traditional “one free bite” rule both by amendment to the Georgia Dog Liability Statute and case law developments over the last several decades.

Child Injury – Dog Bite

[This is Part 1 in a 4 Part Series. The other 3 posts in this Series can be viewed here (Part 2), here (Part 3), and here (Part 4).]

If your child has been attacked by a dog and bitten, what are your legal options? How do you know if you need an attorney? I have written a series of 4 posts on this topic to help parents understand the law. I will provide an overview of Georgia law on the liability of “owners and keepers” of “vicious” dogs and tips on how to decide if you need to contact an injury attorney for help.

Historically the rule in Georgia for determining whether an owner or keeper of a vicious dog was legally responsible for injuries caused by their animal was the “first bite rule.” Under that rule an owner or keeper of a vicious dog could ONLY BE HELD LIABLE for a dog attack if the animal had exhibited the propensity to bite or attack prior to the incident in question and if the owner/keeper knew of the dog’s vicious propensity. This rule was understood by many as giving dog owners “one free bite” before they were responsible for injuries caused by their animal.

The historic Georgia rule is still on the law books, though as I will discuss shortly, it has been relaxed somewhat in recent decades. If you are interested in seeing where – you can find it in O.C.G.A. Section 51-2-7.

The “first bite rule” made it quite difficult for victims of a dog bite to recover compensation for their injuries. It was often impossible to prove that the owner/keeper had actual knowledge of the dog’s vicious propensity. It also was often difficult to find information about previous bites and attacks. As a result of the strictness of the “first bite rule” many injury victims went without compensation.

The next post in this series will give a bit more information about the “first bite rule” and then discuss recent cases that have begun to relax the traditional rule, with the result of opening the way for more injury victims to be compensated.

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A word about teaching children about dog bite prevention –