Category Archives: Child Injury Law in Georgia – Legal Reform Needed

When Can A Parent Be Held Liable for the Conduct of Their Child?

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In the State of Georgia, parents are liable up to $10,000 plus court costs for wilful or malicious acts of their children which result in injury or property damage. O.C.G.A. Section 51-2-3. The same rule applies to non-parental guardians. In Georgia the age of majority is 18 and thus the child must be under 18 at the time of their bad conduct.

Examples of situations where this might apply include: bullying at school where a child is injured and fights between children that result in physical injury.

This rule provides for limited compensation for injury victims who are harmed by the intentional acts of a child. Without such a rule victims might go uncompensated since children generally do not have sufficient means to pay for the consequences of their bad acts.

The amount of compensation available to victims under O.C.G.A. Section 51-2-3, however, is capped at $10,000 plus court costs. That might be adequate to fully compensate those that suffer a modest injury, but what more can be done for those who suffer disabling or catastrophic injuries at the hands of a child?

One thing that can be done is to give due care to analyzing the conduct that caused the injury. O.C.G.A. Section 51-2-3 deals only with the “wilful” or “malicious” acts of minors. It does not cover situations where a parent negligently entrusts a child with a dangerous instrumentality and the child hurts someone. There may be a way around the $10,000 limitation in such scenarios.

Here is an example – Dad gives his son illegal fireworks and while little Johnny is busy blowing them up, another child gets hurt. Little Johnny may or may not be wilful in the matter, perhaps being a bit mischievous but not fully appreciating the grave dangers involved, yet Dad knew better.

Here is a second example of negligent entrustment – a child is allowed to play with a firearm unsupervised and a negligent discharge occurs killing someone. If a parent permitted the child to get their hands on that firearm (either by giving it to them or by failing to adequately secure it), that parent may have legal liability.

Another legal theory that can help an injury victim hold a parent liable for the conduct of their child is the “family purpose” doctrine. This doctrine applies to automobile wrecks and boating wrecks (yes, boat wrecks – See Stuart v. Stephens, 225 Ga. 185, 166 S.E. 2d 890.) When a child is driving a car (or a boat) that is owned by their parents and negligently causes a collision, it may be possible to hold the parents liable (normally this means a claim under the parent’s liability insurance). And note this – the doctrine applies to adult children also. The relevant question is not whether the child is a minor versus an adult but simply whether the child was using the car or boat for a purpose for which the parent provided it with the permission of the parent (either express or implied.)

Yet another legal theory that can help establish parental liability is “negligent supervision.” Parents have a duty to supervise their children. If a parent knows a child is behaving badly or has reason to expect their child to behave violently in a certain situation and fails to take reasonable steps to protect others, they may be liable.

A less common scenario, but one that arises occasionally, is when a parent employs their own child. If that child negligently injures another during the course and scope of their employment, the parent may have legal liability.

These are a few of the scenarios that can arise in the context of parental liability for children who cause harm to others. Your situation may differ. Feel free to call me to discuss.

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to six and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.

Can Doctors Be Sued For the Wrongful Death (or Injury) of An Unborn, Pre-Viable Child?

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At least nine states allow recovery of damages for the wrongful death (or injury) of a pre-viable baby. Viability refers to the ability of the baby to survive outside the womb, even if only in an incubator.

Two more states, Georgia and Mississippi, permit recovery for the wrongful death (or injury) of an unborn child if the mother has felt the baby move inside the womb prior to the time of the injury. This movement is referred to as “quickening.”

Quickening occurs earlier than viability. Courts in Georgia have recognized that quickening can occur as early as 10 weeks into a pregnancy. One way to prove that quickening has occurred is to produce medical documentation that the mother felt the baby move prior to the injury or death.

On February 17, 2012, the Alabama Supreme Court decided the case of Amy Hamilton, individually and on behalf of her stillborn son v. Dr. Warren Scott et al. The issue in this case was whether under Alabama law a physician can be sued for the wrongful death (or injury) of an unborn, pre-viable fetus. A lower court had decided that Alabama law did not permit lawsuits on behalf of unborn children who were unable to live outside the womb at the time of the death or injury. The Alabama Supreme Court reversed the lower court and recognized that a family who loses an unborn child has the right to sue when their baby dies due to medical negligence, whether or not the child had reached the point of viability.

This welcome decision from the Alabama Supreme Court is part of a broader trend in some states to recognize that unborn children, no matter their stage of development, are persons and should enjoy the full protection of the law.

Georgia courts would do well to look to the Hamilton vs. Scott decision as persuasive authority. I have argued in an earlier blog post that I believe Georgia law should recognize a cause of action for wrongful death or injury to an unborn child at any point in a pregnancy when the death or injury flows from the negligence of a person other than a family member.

I hope you will join me in celebrating the Hamilton vs. Scott decision! 

Sources:

Alabama doctors can be sued for death of unborn, pre-viable child

Hamilton vs. Scott decision

Injury to Fetus During Automobile Accident – Reforming Georgia Law

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When a pregnant mother is involved in an automobile collision and her unborn child is injured or killed, do the parents have a claim for the harm caused to their unborn baby? And if so, is the claim viable no matter how early in the pregnancy the injury to the fetus occurs?

The answer to the first question in the State of Georgia is “It depends.” The answer to the second question is currently “No.” but I would argue that the answer should be “Yes.” and Georgia law should be reformed. If I’ve thoroughly confused you with those answers, read on for a fuller explanation!

In the State of Georgia, under Porter v. Lassiter, 91 Ga. App. 712 (1955) and its progeny the central issue has been framed in terms of the legal fiction of “quickening.” An unborn child that has quickened and then is injured or killed has legal rights. An unborn child that has not reached that stage of development has none.

Georgia law does not give a definite time in a pregnancy when quickening occurs, but decisions have stated that quickening generally occurs sometime between the tenth week and the fourth month of pregnancy. See Brinkley v. State, 253 Ga. at 542; Biegun v. State, 208 Ga. 618, 627 (7) (58 SE2d 149) (1950). The Courts have held that the relevant question is whether the baby has reached the stage where the mother can feel fetal movement. See. Citron et al. v. Ghaffari et al (246 Ga. App. 826) (542 SE2d 555) (2000)

Georgia is unique in its adherence to the legal fiction of “quickening.” The majority of jurisdictions that recognize a cause of action for wrongful death of a fetus limit such actions to claims arising after the fetus is viable. A viable fetus is “capable of independent existence outside his or her mother’s womb, . . . even if only in an incubator.” Black’s Law Dictionary, p. 1566 (6th ed. 1990). Viability thus presumably occurs later than quickening. Only a few states recognize a cause of action for wrongful death at any point in a pregnancy.

I believe Georgia law should recognize a cause of action for wrongful death or injury to an unborn child at any point in a pregnancy when the death or injury flows from the negligence of a person other than a family member. The Georgia legislature has already provided a basis for such a change when in 1991 it passed into law a Feticide by Vehicle law that applies to the earliest stages of pregnancy. For purposes of criminal prosecutions under O.C.G.A. § 40-6-393.1(a), an “unborn child” is defined as a member of the species homo sapiens at any stage of development who is carried in the womb.

The existence of a Georgia Fetal Protection Act (sometimes referred to as a PreBorn Victims Act or Unborn Victims Act) defining Fetal Homicide in a manner that includes babies at all stages of development in the womb has other important ramifications that could assist a family in securing fair and adequate compensation for an injury to their baby. It has to do with how much insurance coverage may be available to compensate the family of an injured unborn child.

Many insurance policies provide a set amount of coverage for each person that was injured. So, within the overall limits of the policy, each additional injured person increases the pool of funds available for compensation. The recognition by the State of Georgia that an unborn child is “a member of the species homo sapiens” should be interpreted by the Courts to mean that for purposes of determining insurance coverage, unborn children are treated as separate and distinct persons, thereby increasing the pool of funds available to compensate child victims and their families.

Just to be clear, however, the current state of the law in Georgia is that in order to recover for injuries to an unborn child, it must be shown that at the time of the injury/death the child had reached a stage in its development where the mother could feel fetal movement. This has been recognized to occur somewhere between the 10th week and 4th month of pregnancy. That is a wide window – the key to proving quickening is to have some documentation (commonly a medical record) that the mother had been feeling fetal movement prior to the injury or the testimony of a doctor that the baby had reached the stage of development where the mother could have felt movement.

03/13/2012 UPDATE: Be sure to check out my more recent reflections on this topic and some good news from the State of Alabama.