Personal Injuries & Children: The Statute Of Limitations And Personal Injury Cases In Virginia

10 December 2015
 Categories: Law, Articles

If you suffer an injury due to somebody else's negligence, you can normally file a lawsuit against the negligent party (the defendant). To keep these cases simpler, state laws dictate that you only have a certain amount of time (called the statute of limitations) in which you can file the lawsuit. In Virginia, the statute of limitations is different if the injured party is a child. Find out more here.

The statute of limitations in civil cases

For adults, the statute of limitations in civil law varies according to the nature of the case. This period ranges from one year (for libel or slander) to 20 years for a court judgment enforcement. Lawmakers set the statute of limitations in civil cases according to the time period in which it is reasonable to expect a plaintiff to make his or her claim. For adult personal injuries, this period is two years.

For civil cases, the law also recognizes that it is not always realistic to place the same expectations on a child as you would their adult counterparts. For example, a slip and fall injury could result in a broken bone, but the damage could lead to a long-term problem that doctors cannot fully diagnose until a child reaches adulthood. What's more, damages for pain and suffering are sometimes difficult to quantify for a child versus an adult.

Statute of limitations for children

In Virginia, the statute of limitations in a personal injury lawsuit for a child does not end until he or she reaches the age of 20. To put this in context, if your son or daughter suffers an injury at the age of 2, you have eighteen years to file a lawsuit.

Why the big difference?

Virginian law says that anyone under the age of 18 is under a disability, which means that he or she is not (legally) in a position to make the sort of decisions that a personal injury lawsuit entails. The child isn't in this position until he or she reaches the age of 18, at which point the usual 2-year statute for adults starts.

If somebody is 'under a disability', Virginia law places the statute of limitations on hold. Judges and lawyers normally refer to this process as tolling. Tolling also occurs when somebody becomes a fugitive from the area where they committed a crime. When they return to the area, the statute continues.

Exceptions to this law

Virginian law observes one exception to this statute rule.

Under normal circumstances, children stay under their parent's legal control until the age of 18. However, children may sometimes decide to try to break this legal bond at an earlier age. For example, if a child's parents are abusive, he or she can apply for legal emancipation. Emancipation is only possible when a child is sixteen or older, and even then, only when a judge fully approves the child's application.

As part of the emancipation process (which includes a court hearing), a judge will rule that the child is no longer under a disability. Once this happens, the usual statute of limitations for an adult applies. If the injury occurred before the emancipation, the child will then have two years from the date of the injury to file a lawsuit. If the injury occurs after the emancipation date, the child has two years from this point to take legal action.

When filing a childhood personal injury lawsuit in Virginia, it's important to understand how the statute of limitations works. Talk to a trained attorney in your area for more advice, to make sure you have the best chance of success.

For more information about personal injury cases, contact a practice like Roberts Miceli & Boileau LLP.