It should come as no surprise that the law treats minors — those younger than 18 years old — differently than it treats adults. What you may not know is that those differences include when and how a legal claim by a minor can be pursued in court.
This post discusses three of those differences and what they mean for Ohioans:
- how the statute of limitations applies to a minor’s lawsuit;
- who can file the lawsuit; and
- how the parties can settle the claim.
1. The Statute of Limitations is tolled until the minor turns 18.
A statute of limitations sets the deadline for filing a lawsuit over a legal claim. If someone files a lawsuit over a claim after the deadline for it has passed — or, as lawyers say, “after the statute of limitations has run”— then the defendant can assert the statute of limitations as an affirmative defense. That means that it won’t matter if what the plaintiff claims in the lawsuit is true. Because the lawsuit was filed after the deadline established by the applicable statute of limitations, the court will dismiss it.
How far out the deadline is set depends on what kind of claim the plaintiff is making. For example, the deadline for a claim of medical malpractice is generally one year after the alleged malpractice occurred, according to Ohio Revised Code § 2305.113(A). On the longer end of the spectrum, O.R.C. § 2305.06 says that a lawsuit for breach of a written contract must be brought within eight years of the breach. Personal-injury lawsuits fall under O.R.C. § 2305.10(A), which requires that a lawsuit be brought within two years of the date on which the injury occurred.
However, when a minor is injured — like while riding a hoverboard or playing Pokemon Go — the statute of limitations doesn’t begin to run until the minor turns 18. For example, if a 12-year-old is injured in a car wreck, the deadline for suing over those injuries will be two years after the minor turns 18, not two years after the car wreck. So, the statute of limitations is “tolled” during childhood.
And the minor is not the only one who benefits from this tolling: Under a 2007 Ohio Supreme Court case, Fehrenbach v. O’Malley, the statute of limitations for parents’ derivative claims for loss of consortium and medical expenses incurred when their minor child is injured may also be tolled until the child turns 18, in some circumstances.
2. A parent or legal guardian can file suit on a minor’s behalf.
Normally, one person cannot file a lawsuit for the claims of another. Rule 17(A) of the Ohio Rules of Civil Procedure Rule requires that the “real party in interest” be a party to the lawsuit. However, Rule 17(B) says that a parent or legal guardian can file suit on a minor’s behalf. When a parent does this, the parent is said to be suing as “next friend” of the minor. Instead of requiring the minor to seek recovery in court, the minor’s parents are allowed to stand in for him or her.
3. Settlement of a minor’s claim must be approved by a court.
For adults, settling a legal claim is a matter of negotiation and agreement. The parties are usually free to agree to any terms to settle their dispute, and they can do so without filing a lawsuit. Even if a lawsuit has already been filed, the parties are not required to seek court approval of their settlement. Once they agree to a settlement, the settlement agreement is a binding contract, and either party can enforce it against the other if necessary.
But minors lack the legal capacity to make contracts. As such, they cannot agree to a settlement of their own claims. Even if a minor purported to settle his or her own claims by contract, the contract wouldn’t be binding. At the same time, the law recognizes that the parents or legal guardian of a minor may have a conflict of interest with the minor.
Consequently, Ohio law requires that settlements of minors’ legal claims receive court approval. This means that a lawsuit must always be filed, even though the parties agree on what the outcome should be. The court’s role will be to ensure that the settlement is in the minor’s best interests. Once the court approves a settlement for a minor, the settlement agreement is binding on all parties, including the minor.
These are not the only differences between how the law treats a minor’s personal-injury claim and the same kind of claim made by an adult. The law also imposes specific requirements on the lawsuit or settlement proceeds, which an experienced personal injury lawyer can review with you.
Get Help with a Minor’s Legal Claim
The bottom line is this: If your minor child has been injured, you need the assistance of the knowledgeable attorneys of Dyer, Garofalo, Mann & Schultz to help you pursue that claim. If you find yourself in that unfortunate situation, please contact us today so we can help you and your child get the compensation you deserve. Check out our client testimonials here.
Want more information on other ways to keep our children in Ohio safe? We break down everything from underage drinking laws in Ohio to the texting while driving ban.
Prior to forming Dyer, Garofalo, Mann & Schultz, Doug worked as a bodily injury claims adjuster for a large insurance company. This unique experience has been a tremendous asset to Doug in his fight to achieve maximum cash settlements for his clients in minimum time. Since departing from the insurance company, Doug has dedicated his entire legal career to helping injured clients when they need it the most.