Injuries to Children in New Mexico

Avoidable child injuries are the leading cause of death and injury in children. According to the CDC, one child dies of avoidable injuries every hour. For every child that dies, 25 more are hospitalized and 925 more are treated in the emergency room. In fact, a child is treated every 4 seconds in the ER. All told, according to the CDC, the U.S. has one of the highest child accident death (mortality) rates among the world’s high income countries.

These injuries are often serious. Most of the time, children fully recover. In those cases, the child is entitled to compensation for the injuries which can be significant although not permanent. Sadly, there are many times when the child does not fully recover. Instead, the injuries permanent, and often severe. In cases of permanent harm, the child will be dealing with the injuries for many years sometimes for the remainder of the child’s life. With permanent injuries, particularly severe permanent injuries, this can mean lifetime medical expense, physical therapy, mental health services, rehabilitation and inability to work. Permanent severe injuries in short can be catastrophic to a child. The child should be taken care of, and the people, companies and institutions (more accurately their insurance companies) should bear the costs of that care.

New Mexico Personal Injury Law Applies Equally to Children

New Mexico personal injury laws, processes and procedures apply equally to injuries involving children as they do with adults. Although there are some minor differences, the primary distinction between injuries to adults and children relate to increased Court protections over the funds obtained through settlement or trial. New Mexico courts are very protective of the rights of children and the protection of any money obtained for compensation of a child’s injuries. In fact, a lawyer is appointed by the court for this purpose. The lawyers appointed by the court to protect the interests of the child is called a Guardian Ad Litem (GAL) and will discussed in great depth below.

Damages Overview

Damages are simply a legal term for injuries. Recoverable damages for the negligence of others (known as a Tort under the law) cover a lot of ground. Recoverable simply means that the injuries are compensable under the law. In other words, persons injured as a result of the negligence of others are entitled to compensation for those injuries.

Children are entitled to same damages as adults. Generally, the law of damages in New Mexico provides for compensation for physical injuries, death, physical pain and emotional distress. The child might also be entitled to lost wages. Young children do not work except in rare situations. However, many teenagers do work and would be entitled to lost wages just as would a working adult. In cases of extreme negligence, termed recklessness under the law, the child would be entitled to punitive damages.

Injury to Child Caused by a Parent

A child may in some situations, such as auto accidents, be entitled to compensation from the parent. A child suing a parent may seem wrong, but the child is not really suing the parent. Instead, the child is essentially suing the parent’s insurance company. It would be the rare situation where a parent paid personal funds to compensate the child. The insurance company pays.
When a child is injured, it can have long-term and even life-long consequences. These could include permanent physical injuries and permanent emotional injuries such as Post Traumatic Stress Disorder (PTSD). These injuries can be extremely expensive to the family in the absence of payment by the insurance company. For instance, an injured child may need long-term or even life-time medical care, physical therapy, mental health services, rehabilitation and occupational therapy.

Parents pay for the insurance that covers certain injuries a child caused by the parent. Who is best able to bear the burden of the expenses for a child’s injuries, a multibillion-dollar insurance company or the family? In sum, although it may seem wrong for a child to file a claim against a parent, it not only is necessary but just.
Injury by Family Members

The same reasoning justifying claims against parents by injured children applies to injuries caused by other family members. Injuries to children may be caused by household family members or other family members outside the home. Injuries caused by household family members would be treated much the same as injuries caused by a parent as would cases in which the injuries are caused by family members outside the home with some exceptions.

The primary difference between claims for injuries caused by household family members (including parents) and those caused by non-household family members is the nature of the insurance that will provide insurance coverage for the injuries. For parents and other household members, the most common injuries involve car accidents which is covered by automobile liability insurance. Injuries to children caused by non-household members can bring all varieties of liability insurance into play. In fact, injuries caused by non-household members will be treated for the most part identically to injuries caused by third parties which will be discussed next.

Injury to Child Caused by Third Parties

Children, just like adults, may suffer injury resulting from the negligence or recklessness of third parties that are neither household members nor family members. In fact, third parties are generally the cause of most accidental injuries to children. For injuries caused by third parties, claims for children will proceed in almost identical fashion to claims for adults. As with any other case involving injuries to a child, the chief difference comes at the end of the case when compensation is obtained through settlement or trial verdict and the Court is involved to approve the settlement.

Insurance Coverage for Injuries to Children

Among the biggest challenges in personal injury cases is finding insurance coverage for compensation for injuries. This is equally true for injuries to children.

Automobile Insurance for Child Injuries

As mentioned, in cases involving parents or household family members, automobile liability insurance is generally the insurance that will provide compensation for the child’s injuries. Auto insurance should always cover injuries to a child caused by a non-household member or other third party, assuming that party maintains liability insurance. If not, there is potential for coverage under the minor’s household automobile coverage if the family maintains uninsured/underinsured motorist coverage.

Homeowners Insurance for Child Injuries

Homeowners insurance comes into play when injuries occur at a home due to the negligence of the homeowner. Homeowners coverage will almost always cover injuries occurring in a home other than the family home. There are restrictions on homeowners insurance coverage involving injuries in the home due to the negligence of a parent or other household member. The nature and causes of the injuries will determine insurance coverage in both the family home and other homes. In these cases, particularly for injuries in the family home, the insurance policy will need to be thoroughly reviewed to rule out any exclusions to coverage. Homeowners insurance may also cover damages for injuries that occur outside the home. The most common example involves dog bite cases.

Personal Liability Umbrella Insurance for Child Injuries

People with significant assets will often obtain a Personal Liability Umbrella Policy (PLUP). These policies come into play when other insurance is insufficient to cover the child’s damages. In cases involving severe permanent harm to the child, auto and homeowners insurance will rarely be sufficient to fully compensate the child. In these cases, the PLUP will kick in to cover the deficiencies in coverage.

Claims Process for Injuries to Children

The claims process for personal injury claims of children proceed just as personal injury claims process for adults until a settlement has been reached or a verdict has been entered at trial. Once a settlement or verdict has been reached, the Court must then be involved to protect the rights and interests of the child. The Court appoints a guardian ad litem (GAL) for this purpose. A GAL must be appointed in a case involving injuries to a child. Most insurance companies require court approval of a minor’s settlement which involves the appointment of a GAL. The child’s lawyers would be flirting with disaster for settling a claim and distributing the funds without a GAL in most circumstances.

Importance of a GAL in Cases Involving Injuries to a Child

The Guardian ad Litem is an independent party appointed to the case with knowledge relevant to the minor’s settlement. The GAL is typically an attorney with years of experience in the personal injury field so is knowledgeable about values of claims, insurance issues, medical bill subrogation and safe investment of settlement funds. The GAL is an “arm of the court” meaning the GAL is responsible for providing the assigned judge with information about the accident, child’s injuries, medical bills, settlement terms and investment of the funds. The GAL recommends the judge approve the settlement if the GAL finds the settlement to be fair, reasonable and in the best interest of the minor. The judge then makes her decision, but typically follows the recommendation of the GAL.  Alysan Boothe Collins, partner at Collins & Collins, P.C., has expansive experience in the area of personal injury and as a guardian ad litem.  She is regularly appointed by the courts for the protection of children in litigation.

GAL Role and Responsibilities for Protection of the Child

When a claim is brought on behalf of the minor, most insurance companies require court approval of the settlement. This protects the insurance company by obtaining an order from a judge that confirms that the settlement is fair and reasonable. It is the insurer’s hope that the settlement will be binding on the minor so no claims can be brought by the minor after he or she reaches age 18. The court approval process involves the filing of a lawsuit by a parent or guardian or another appropriate party on behalf of the minor. This person is usually identified as the “next friend” of the minor. The lawsuit is against the at-fault party or if the claim is an uninsured motorist claim, the lawsuit is against the insurance company that will pay the settlement. These lawsuits are often called “friendly lawsuits” because all parties are in agreement and the lawsuit is brought solely to obtain court approval of a settlement that has already been reached. The process is fairly simple.

At the time of the filing of a lawsuit, the parties also appoint a Guardian ad Litem for the minor who is appointed to review the settlement and provide the appointed judge with a report that explains the accident, injuries, settlement terms and whether the GAL believes the settlement fair and reasonable. If fair and reasonable, the GAL recommends that the judge approves the settlement. Generally, the judge will agree, but if the judge has concerns about the fairness of the settlement, it is not approved and usually the parties meet to resolve the issue. In addition to reviewing the settlement to determine if it is fair and reasonable and in the minor’s best interest, the GAL also makes recommendation as to how the money is invested. In most cases, the minor is not to have access to the settlement money until the minor reaches age 18, the age of majority in New Mexico. The GAL must recommend investment of the funds in an account that is restricted from access by anyone other than the minor at age 18, and safe from risk of loss. Safe investments include, but aren’t limited to, certificates of deposit, accounts under the Uniform Transfers to Minors Act and structured settlements with guaranteed payments.

Causes of Injuries to Children and the Legal Consequences

Injuries to children can be accidental or intentional.  The distinction can have serious consequences for insurance coverage with intentional actions being excluded from coverage.  Injuries can arise from civil rights violations and/or violations under the Americans with Disabilities Act and the Rehab Act.  The cause of the injuries and the person or entity responsible for the injuries will determine the relevant law and available insurance coverage.  Likewise, there may be multiple causes of injury (and possibly multiple people or entities responsible for the injuries) with multiple areas of the law invoked as a result of those different causes and defendants.

Accidental Injury

Accidents come in countless varieties. These include car accidents, truck accidents, boat accidents, bicycle accidents, slip and fall accidents, medical negligence, playground accidents, household accidents, vacation accidents, dog bites and countless other causes of injuries to children. Not all accidents are compensable. Only those that involve neglect, reckless and on occasion intentional injury to children will result in valid and viable personal injury claims.

Intentional Injury

Unfortunately, children can fall prey to all kinds of intentional injuries. These span the spectrum of emotional, psychological, and physical injuries including death. Even though Intentional injuries are the most reprehensible and damaging to children, obtaining compensation for these injuries can be difficult at best, impossible at worst. The reason is that almost all insurance excludes intentional injuries. Cases and intentional injury in short are extremely challenging but that should not deter the parent(s) from seeking a full investigation of all possible avenues of compensation for the child.

Intentional Wrongdoing

It should be noted that intentional injury and intentional wrongdoing are not the same. People often wrongfully engage in risky behavior. Some of this behavior may amount to simple negligence. Some behavior may be reckless. So long as the person did not intentionally harm the child, all pertinent insurance should be available.

Civil Rights Violations

Children are on occasion the victims of civil rights violations. These violations could arise in a number of situations. The typical civil rights violations would include encounters at school and/or encounters with law enforcement. Children are entitled to protection of their civil rights just as any other citizen of New Mexico. Fortunately for New Mexico children and New Mexico citizens generally, New Mexico passed its own Civil Rights Act which became effective on July 1, 2021. Thus, any civil rights violations arising out of incidents on July 1, 2021 or later may give rise to civil rights claims for the child victim of the violations. In addition to possible claims under the New Mexico Civil Rights Act (NMCRA), a child may like any other citizen of the U.S. also have claims under the §1983 of the federal Civil Rights Act.

Civil rights violations are complex and difficult. The New Mexico Civil Rights Act is very new so it remains to be seen how it will play out in New Mexico courts. The New Mexico federal district court and the 10th Circuit have not historically been very friendly to civil rights lawsuits or individual plaintiff (injured person) cases generally. The New Mexico courts are significantly more progressive and sympathetic to individual plaintiff claims and it is hoped that they will be more sympathetic/fair to plaintiffs in civil rights lawsuits.

Keep in mind that claims under the NMCRA can only be brought against governmental entities. This too can be complicated as there are businesses and companies that provide governmental services. There are occasions where these entities might qualify as government actors subjecting them to NMCRA claims.

Americans with Disabilities Act and Rehab Act

Just as with civil rights, children have equal protections to other citizens under the Americans with Disabilities Act (ADA) and the Rehab Act. In addition, although it has not been tested yet, these might be brought in state court where again New Mexico judges tend to be fairer to injured people versus businesses, corporations and government.

Statutes of Limitations on Child Injury Lawsuits

The statutes of limitations for child injury lawsuits can be a little tricky.  The statutes of limitations can vary depending upon the type of case and the defendant.  It is extremely important to be aware of the statute of limitations deadlines.   Missing a statute of limitations can bar a claim completely.