Frequently Asked Questions About Child Injuries
- Page 1
What if my child was injured at a children’s facility or the playground?
Defective playground equipment or improper protective devices, and negligent supervision, can all contribute to injury. If you are looking for a child injury attorney – we are here to help you. If you are in the San Francisco bay area, we will review your case and give you an idea of the process to ultimately obtain compensation for your child’s injuries. Do not hesitate to call us today 24 hours toll-free at 888-592-KIDS.
How is a claim or lawsuit actually settled on behalf of a child? And, is it possible that part of a child’s settlement be used for the benefit of the child before he or she turns 18?
Settlement of claims and lawsuits involving minors requires court approval and supervision, but it is quite normal for settlement funds to be used for the child before he or she turns 18. First, a settlement must be approved by a court. See Prob.C. Section §2504, 3500, 3600 et seq, and CCP §372. Until the court approves the settlement with a written order, a settlement is not final. Scruton v KAL (1995) An attorney for the minor will ask the court to approve the settlement, and to approve payment of attorney fees and reimbursement of the costs which were expended by the attorney in pursuing the claim or lawsuit. See CCP §372 and CRC (Probate Rules) 7.953 and 7.954 and CRC 378; Fam.C. §6602, and Prob.C. § 3601. The Court will allow attorney fees under a contingency fee agreement, as long as they are reasonable. See CRC (Probate Rules) 7.955 The adult representing the interests of the child (e.g. parent, conservator of the estate, guardian or guardian ad litem) must attend the hearing in court to approve the settlement, unless excused for good cause by the court. See CRC (Probate Rules) 7.952 If the minor is able to speak to the court, the court may ask the minor about the injuries and his or her feelings about settlement; and, in some cases, the court may require that testimony be taken from the minor's treating or examining physician. See CRC (Probate Rules) 7.952 At the end of the hearing, the court will issue a written order using the California Judicial Council form signed by the approving judge.
Is there a deadline for my child to file a claim or lawsuit in California?
Yes, and the time limits are different depending on the type of claim or lawsuit being brought on behalf of the child. (1) State law claims of children against the State of California, and its cities or counties: Generally speaking, in order to bring a state law claim against a governmental agency, a claim must be presented within six (6) months from the "date of accrual" of the claim. See Gov. Code 911.2(a) The "date of accrual" is typically the date of injury, but may be later if the claim is based on "delayed discovery" of the claim. See Gov. Code 901. "Delayed discovery" means that the parent/guardian does not suspect or should not suspect that a wrong has been done to a child, such as when sexual molestation of a child has occurred and where the parent/guardian was unaware of the molestation. A claim against a government agency or employee which is based on "delayed discovery" involving sexual molestation of a minor where the molestation has been continuous accrues on the last date of molestation. See Ortega v Pajaro Valley Unified Sch. Dist. (1998) The "delayed discovery" rule may be applied in child molestation cases when the parent/guardian had no reason to suspect wrongdoing and the child claimant does not understand that what had happened to him was wrong. See Curtis T. County of Los Angeles (2004) (2) Federal law claims of children against the federal government: With respect to claims brought on behalf of minors against the federal (United States of America) government, for the acts of its employees, agencies or a Federally Qualified Health Center, these must be brought pursuant to a law known as the Federal Tort Claims Act. These claims must generally be brought within two (2) years from the date of the tortious act. See 28 U.S.C. 2401(b). A presuit claim (Form 95) must be submitted prior to filing the action in federal court. The Defendant is the United States of America, and not the agency, employee or Federally Qualified Health Center. (3) State law claims of children against private parties (e.g. persons and corporations): (a) For injuries suffered pre-birth and during the course of birth: An action by or on behalf of a minor for personal injuries (other than medical malpractice suits) sustained before or in the course of his or her birth must be commenced within six years after the date of birth. See CCP 340.4 (b) For medical malpractice claims: A minor's medical malpractice suit must be initiated within three (3) years of the act of malpractice, or one year after parents discovered or reasonably should have discovered the injury, unless he or she is under six (6) years old. If the child is under six (6) years of age, the lawsuit must be started within three (3) years of the act of malpractice or prior to the child's eighth (8th) birthday - whichever is the longest period of time. See CCP 340.5 (c) For general personal injury claims after birth (e.g. other than medical malpractice claims, state law government claims and federal tort claims, but including federal civil rights claims brought pursuant to 42 USC 1983): If a child is entitled to bring a lawsuit for personal injuries, or civil rights violations, the time during which the child is a minor (e.g. up until his or her 18th birthday) is not part of the time limited to start the lawsuit. See CCP 352. The general time within which all persons have to file personal injury lawsuits - which is two (2) years (See CCP 335.1) - begins to run at the eighteenth (18th) birthday of the child - meaning that it must be filed on or before his or her twentieth (20th) birthday.
When and why is lead paint in my apartment or rental home considered hazardous for my children?
The San Francisco Health Code defines a lead hazard as “Any condition that exposes children to lead from any source, including but not limited to leadcontaminated water, lead-contaminated dust (dustlead hazard), lead contaminated soil (soil-lead hazard), and paint-lead hazard in dwelling units or other locations” [Article 26, Section 1603 (w)] Lead paint in apartments or rented homes is considered hazardous because, in general, as lead paint ages, it breaks down and may chalk or flake into small lead dust particles. These lead dust particles settle on surfaces in the home and the soil, and stay in the environment forever. Lead dust is a hazard to young children because they commonly explore their world through touch and taste, and unintentionally swallow lead dust. When a child touches surfaces with lead dust particles and later places fingers in his or her mouth it can result in lead poisoning. The child's body absorbs lead, as if it were a needed mineral, like calcium or iron. Gradually the lead builds up in his or her body and causes damage. Lead is a poison that is especially harmful to young children and fetuses because of its effect on brain development. There is no safe level of lead in the body. Research studies show that any amount of lead detected in children's bodies may affect children's learning ability, attention span and growth.
Is there lead paint on my rental property?
Yes, in all likelihood. Lead was widely used in both interior and exterior house paint until 1978, when new laws greatly reduced the amount of lead allowed. For example, in San Francisco, 91% of homes were built before 1978, and most have older layers of lead-containing paint. So, there is a very good chance that your apartment or rental home contains lead - at some level. As long as it is properly contained, it will be OK for your child, but when paint chips, peels, chalks or when major renovation are done, you should insist that it be taken care of immediately. If you have any questions or concerns, please contact The Keane Law Firm.
How many children are actually lead poisoned in San Francisco on a yearly basis?
The government estimates that in excess of 400 children are lead poisoned each year in San Francisco. If your child is one of them, please contact The Keane Law Firm to see if we can help you help him or her bring a valid claim against the landlords and contractors responsible for poisoning them with lead.
Is my landlord legally responsible for making sure my child doesn't become lead-poisoned while we live in the rental property?
Yes. Your landlord is required to follow the law and maintain your apartment or rental home in a safe condition - which means that your children should be exposed to zero lead. In San Francisco, for example, the San Francisco Health Code, Article 11, applies to all housing in San Francisco. Section 581(B)(10) prohibits lead hazards in any housing. The San Francisco Department of Public Health enforces the city and county's code. Inspectors from the Department of Public Health are entitled to presume that any paint on a building built prior to 1979 is lead-based, and may issue citations for chipped, or peeling paint based on their visual inspection of the building. Landlords are required to provide housing free of lead hazards. The San Francisco Health Code, Article 26, Section 1603(w), defines a lead hazard as “Any condition that exposes children to lead from any source, including but not limited to lead contaminated water, lead-contaminated dust (dust lead hazard), lead contaminated soil (soil-lead hazard), and paint-lead hazard in dwelling units or other locations”. When the inspectors find lead hazards, they will require the landlord to fix them using properly trained, state-certified workers. The city may require the landlord to provide the tenant with money to live elsewhere while the repairs are being made, too. San Francisco Building Code Section 3407 requires that all contractors use "lead safe work practices" for any activity which disturbs lead paint, and this would include repairing those apartments and rental homes that are cited for lead hazards. State law, CCR Title 17, Chapter 6, requires property owners of public and residential buildings to hire only lead-certified contractors to do work that reduces lead hazards. Pursuant to Title 17, any deteriorated (flaking, chalking, chipping, peeling) lead-based paint is a hazard. Federal law, 24 CFR Part 35 and 40 CFR Part 745 require all landlords to tell tenants both their knowledge of lead paint or lead paint hazards before a lease is effective, and to provide tenants with the United States Environmental Protection Agency Booklet entitled "Protect Your Family From Lead In Your House". If the landlord violated these laws, and your child was lead-poisoned, you may have the right to bring a lawsuit against the landlord and/or any of his contractors who created the lead hazard which poisoned your child. Contact the Keane Law Firm now to talk about it.
What should my landlord be doing to make sure my child isn't lead poisoned from paint on the rental property?
Your landlord should not delay maintenance of the paint on your property. With delayed maintenance, older lead paint will move through the chipping, peeling or cracking paint layers. Old lead paint which is improperly maintained will release lead dust particles. This is especially true of "friction points" - such as window sashes or door frames. When windows open and close, the friction causes painted surfaces to rub against each other, releasing lead dust particles if the paint is improperly maintained. Friction also occurs when doors are out of alignment. Insist that your landlord keep painted surfaces intact, and that doors are aligned properly. Also, when a landlord hires contractors to repair and renovate, or paint an older building, insist that they use safe work practices. This means that they should not be "dry-scraping" or "powersanding" without effective containment of the lead dust and clean-up. It is well-known that lead dust and debris spread inside the living space of an apartment or rental home. If you have questions or concerns about work done on your rental property, have your child tested for lead. If the test is positive, contact The Keane Law Firm immediately so that we can help your child with his or her claim against the landlord.
My child was lead poisoned when he was much younger, and we moved out of that property. Can we make a claim against our old landlord now - even though we have moved years ago?
Yes. You do not have to live in the apartment or rental home where your child was lead poisoned in order to make a claim or file a lawsuit against the landlord. Likewise, it is proper to bring the claim or file a lawsuit while you or your child still live in the apartment or home. You cannot be evicted from your home because you exercise the legal rights of your child to make a claim or file a lawsuit for being lead poisoned.
If a child is injured in a car crash as a result of the negligence of his or her family member (such as a mom or dad), can a claim be brought on his or her behalf? How is that done?
Yes, a minor child may maintain an action for negligence against his parent. See Gibson v. Gibson (1971) The claim can be brought on the child's behalf by the other parent, a guardian, conservator of the child's estate or a guardian ad litem appointed by the court. See CCP 372 -376.