Accidents with Children

Accidents with Children

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Florida law recognizes that children are not always able to comprehend a particular danger. For instance, in motor vehicle law, there is a special jury instruction for children which essentially places a higher standard of care on a motorist when the motorist knows or has reason to know that children are in the area. Florida law also recognizes that the one who undertakes the duty to supervise a child, whether at school, a daycare center, or at a babysitter’s home, has a duty to protect that child from harm. Florida also allows a cause of action for what is called an “attractive nuisance.” An attractive nuisance is a condition which exists upon a person’s property which is unreasonably dangerous to children but by the very nature of the condition on the property is likely to attract children to the sight. A common example is a construction area. Landowners have a duty to minimize the risk to children attracted to their property because of the condition existing upon the property.

Of course children have the same general rights under Florida negligence law as would any adult. The difference between an adult’s claim and a minor’s claim is that there is a somewhat different procedure in handling a minor’s claim. Florida has passed a number of laws which are designed to protect minor children who have been injured as a result of another person or another party’s negligence. The laws specifically require that the settlement of a minor’s claim in excess of $5,000.00 requires approval from a circuit court judge. The purpose of this judicial review is to ensure that the proposed settlement is fair to the minor. A minor’s parents do have the right to settle claims on behalf of their child for amounts less than $5,000.00. However, to settle a claim on behalf of their child in the amount of more than $5,000.00, a petition must be filed with the court seeking the court’s consent to settle the claim; the court must authorize the parents or a guardian to sign any releases associated with the claim; the court must appoint a guardian of the minor’s property received in the settlement of the claim; and, the court may (and sometimes must) appoint an independent guardian ad litem to prepare a report for the court concerning the settlement of the claim.

Once the court approves the settlement of the claim and appoints a guardian to watch over the minor’s settlement funds, guardianship must be established. Laws of the State of Florida typically require that any money a minor receives in settlement of a claim must be held in trust on behalf of the minor. Frequently this is accomplished by placing the funds into a specially restricted bank account whereby no money can be removed from the bank account without prior court authorization. Thus, if the guardian wishes to spend any of that money on behalf of the minor, the guardian must make an application to the court asking for the court’s approval of the expenditure. The reason for the guardianship is to protect the minor’s money from bad investments, expenditures unrelated to the minor’s health and well being, and to generally protect the minor’s money until the minor reaches the age of 18 or beyond. Each year, the guardian must file a report with the court detailing the value of the assets held on behalf of the minor, and listing all expenditures made with the minor’s money for that calendar year.

Guardians often select a “structured settlement” when settling a minor’s claim. The purpose of this structured settlement is to invest the settlement proceeds from the minor’s claim. These investments grow over time and once the minor reaches 18 years of age or beyond, the investment begins to pay dividends to the former minor. Settlements of this nature can be structured in many different ways, for example paying out a certain amount every year for the rest of the former minor’s life. It can pay certain lump sum amounts every 5 years for a number of years. Structured settlements can be used to finance college educations by providing a certain sum of income each year that the child would attend college.