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 Drowning Death or Injury – Legal Claims

Summer is near and many public and private pools are being prepared for the swim season. If children are not properly supervised at the pool, summer-time fun can quickly turn tragic.

Drowning is the leading cause of injury death for children 1 to 4 years of age in the United States. 

Top Causes of Injury Death to Children - 2009

Child Death Injury Drowning 2000-2005

Many of these injuries and deaths are foreseeable, controllable, and preventable. The tragic impact that the death (or injury) of a child brings to a family can often be prevented if the owner of the pool follows a few simple safety rules.

What are the standards and rules by which a owner or operator of a pool must abide?

The answer to that question is complicated. There isn’t a published “list” of all safety rules that apply. And the standards/rules may vary depending on the location and type of the pool. This is why you need a lawyer to research what standards/rules apply and how to best present your claim to the insurance company or jury.

One body of regulations that relate to pool safety can be found in Chapter 290-5-57 of the Rules of the Georgia Department of Human Resources Public Health. These “pool rules” contain a variety of standards that may assist your attorney in identifying what the owner/operator of the pool in question failed to do that led to your child’s injury. For instance, the regulations address such matters as diving boards, jump boards, beginner’s areas, decks, bather load limits (the maximum number of swimmers that can safely be allowed in the pool at one time), and required inspection reports.

Another source of duties for pool owners/operators are city and county ordinances. Those need to be identified and researched by your attorney and the standards contained in those ordinances will vary from jurisdiction to jurisdiction.

Another important set of standards/rules is what is known as the “standard of care” for lifeguards. If a lifeguard was on duty at the time of the drowning or injury to your child there needs to be an investigation of whether that guard (or the guards if there was more than one) were properly trained, certified, and whether their performance of their duties on the day of the drowning met the “standard of care.”

The most basic applicable lifeguard standard of care involves a “two-fold duty” (1) to observe swimmers for signs of distress, and (2) when distress is discovered, to attempt a reasonable rescue. The issue in many cases is whether the lifeguard should have discovered any signs of distress prior to the drowning.

Other duties on the lifeguard may exist if the owner/operator of the pool created written standard operating procedures which the lifeguard was required to follow. If these procedures were not followed this will be additional evidence that will help your attorney prove that the negligence of the lifeguard was the cause of the drowning.

This is a short PSA reminding everyone that drowning is the leading cause of injury death to children ages 1 to 4 and that we all need to be aware and do all we can to prevent these tragedies –

Sources:

Centers for Disease Control and Prevention / CDC Vital Signs: Child Injury (2009 statistics)

Centers for Disease Control and Prevention / CDC Childhood Injury Report (2000-2005 statistics)

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Attorney Pete Pearson practices personal injury law in Atlanta, Georgia and has a special interest in helping families of injured children. He is a father to six and lives with his wife and children in Conyers, Georgia. He can be reached directly at Six-Seven-Eight 358-2564. 

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

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