School is out for summer, and with it, there is a substantial increase in child injury. Nearly one-third of all fatal child injuries occur during June, July, and August. According to the Centers for Disease Control and Prevention (CDC), each year there are 2.8 million children going to the emergency room for injuries related to a fall. We can all agree that children need to be protected from the various dangers facing them. This article will not cover personal injuries caused by motor vehicle accidents, defective products, or medical malpractice. Instead, this article will focus on the child who is injured while playing on your property, or as a guest in your business.

Unfortunately, parental negligence, accidental or otherwise, contributes greatly to the number of injured children each year. When a child happens to become injured, the medical bill can be substantial, and all too often, following a call to a lawyer, the parent will look for someone else to share in the blame and cost, preferably someone with insurance who is willing to pay without much of a fight.

Additionally, you may find yourself in a suit for an alleged fall that occurred several years in the past. Virginia provides children an extension on the usual statute of limitations, allowing them to sue two years following their eighteenth birthday. In the District of Columbia and Maryland, the suit can be brought up to three years following their eighteenth birthday.

In Virginia you cannot recover for accidents in which your own negligence was at least partially at blame, otherwise known as contributory negligence. A person usually judges the conditions of their property or business using this logic, that open and obvious dangers speak for themselves and if someone is injured by that danger, that person must have been negligent.

However, it is accepted that a child will lack the ability to recognize hazards and avoid them, so a different calculation is used to determine their contributory negligence. Children under the age of seven in Virginia, and five in Maryland, cannot be found negligent. There is a presumption of being incapable of negligence if the child is between the ages of seven and fourteen. However, this presumption can be overcome if it can be shown the child possesses the knowledge, experience, and mental faculties to evaluate and avoid a dangerous condition. If the child is over the age of fourteen but not yet eighteen, the standard becomes how a reasonable person of the same age would have acted in a similar situation. The District of Columbia and Maryland are more straightforward, their standard for minors is how a reasonable child of the same age would have acted in a similar situation.

In practice, this will mean evaluating your property and business for dangers with a child’s knowledge and experience in mind. Don’t take for granted how obvious a danger is. Doing so can limit the possibility that a child is injured, which is most important, but it will also limit your exposure to an expensive and costly lawsuit. Some owners will fence and enclose dangers that may attract children, which some local, municipal, or state ordinances may require. Signage indicating “no trespassing” can be helpful, but does not relieve the owner’s responsibilities, or “duty of care” to trespassing children. Keep this in mind if you find yourself willing to let children trespass on your property and approach pools, play sets, and trampolines. Likewise, signs advising of danger can be helpful, but will not prevent an injury if the child is unable to read. You are not required to childproof your property or business, but in the event you are sued, being able to demonstrate that you took thoughtful precautions will help your defense.

Our firm represents individuals who find themselves in litigation over a child who is injured on their property. Please contact our firm if you need assistance. The law in this area can be confusing and because of the emotional weight given to an injured child, a vigorous defense by experienced attorneys is necessary.

If you have questions about this article, or would like more information, please contact Michael Jacquez (mjacquez@setlifflaw.com) at (804) 377-1262 or Steve Setliff (ssetliff@setlifflaw.com) at (804)377-1261.