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It's Never a Child's Fault--Children, Pedestrians, and Personal Injury

child riding a bike in a street before an accident Image by Canva.com New Mexico is a pure comparative negligence state. This means that, normally, if the victim in an accident shares in the blame, any settlement they receive will be reduced by their percentage of fault. The exception to this rule, however, is small children. They are almost never considered at fault in an accident.

Accidents Involving Children Are Common

A child’s size makes them particularly vulnerable in a car crash. New Mexico has car seat, booster seat, and seat belt laws to protect them as passengers. Still, in 2020, 72% of child motor vehicle accident deaths occurred while those children were riding in cars. For the rest, pedestrian accidents make up 17% of total car-related deaths for kids, and bicycle accidents account for 3%. While these numbers are much lower than those inside vehicles, even one death is too many. Parents could consider filing a wrongful death claim. For every car accident death, many more children sustain serious and possibly life-altering injuries. With a few exceptions (which we will cover later) a child cannot be to blame, because they lack the judgment and understanding of the risks of an older person. All motorists, on the other hand, have a duty of care and must exercise caution at all times—especially in situations where children are present. This is the reason for reduced speed limits and caution signs around schools, parks, and residential streets where kids are likely to be.

Compensation for a Child’s Personal Injuries

Children have the exact same rights to compensation for personal injuries as adults. That means reimbursement for expenses such as medical treatment, surgery, hospital stays, medication, physical therapy, and long-term care if necessary. A claim can also include pain and suffering and emotional distress. When an adult victim files a claim with the at-fault driver’s insurance company, it often takes some effort to prove who is liable for damages. Insurance companies often initially refuse a claim or make a lowball offer, sometimes pressuring the victim into accepting a settlement. Cases involving children are different. Traffic laws assume that a young child is not liable, regardless of the circumstances. Insurance companies know this and therefore pay claims without too much resistance. It is still important for a parent to hire an experienced automobile accident attorney. A lawyer can thoroughly calculate damages so that compensation does not fall short of the child’s current and future needs. children walking in a street before a car accident Image by Canva.com

The Settlement Process in New Mexico

New Mexico takes special care to protect a child’s interests once an insurance settlement is reached or a court issues a verdict in a lawsuit by appointing a Guardian ad Litem (GAL). Most insurance companies will not proceed with a settlement agreement without court approval by a GAL. The GAL is an unbiased attorney whose job is to ensure that settlements involving minors are fair and complete. In addition, the GAL oversees the distribution of the money. The child’s parents, for example, will receive reimbursement for any out-of-pocket medical bills for the child’s injuries. In some cases, the parents may also be able to collect lost wages and other expenses incurred while their child was hospitalized. Money awarded directly to the child for pain, suffering, emotional distress, or for ongoing future medical care is often invested or placed in a trust until the child turns 18, which is the age of majority in New Mexico. The GAL sees that the settlement is kept safe and restricted from use for anything other than the child’s well-being—even by the parents.

When Can Children Be at Fault?

Even though 18 is the age of majority in New Mexico, that does not mean that anyone under that age is never at fault in an accident. For example, if a teenage driver is negligent and hurts someone in a crash, they are liable just as a negligent driver of any age. One difference, however, is that they may be covered under their parent's insurance policy, so any claims against them come from that policy. In some cases, an older child could also be found partially liable as a pedestrian or cyclist. Traffic laws make accommodations for children who do not understand the danger in roadways, or who do not have the reasoning and decision-making capabilities of an adult. New Mexico laws do not specify an age when children gain this knowledge, but a 14-year-old, for example, would be expected to know that darting into traffic is dangerous. A 3- or 4-year-old most likely would not. And an 8- or 9-year-old might understand the risks, but their immaturity could cause them to be careless or distracted. It’s rare, but an at-fault driver’s insurance company or attorney might attempt to challenge the innocence of an older child to reduce compensation. Still, the rules of the road in all states insist on drivers exercising care when behind the wheel. And a judge and jury might look down on attempts to blame a child, which could affect their decision.

How an Automobile Accident Attorney Can Help

If a child is hurt in an accident, they need compensation for their injuries. They deserve the very best care to alleviate their pain and suffering so they can enjoy their childhood and their future. Having an injured child and all of the medical expenses that go along with those injuries can put a strain on a family both financially and emotionally. Parents should contact an experienced automobile accident attorney like Kane Personal Injury. During a free consultation, they will review the case and determine how best to get the child the help they need. Please note that this article was created for advertisement purposes, and it does not constitute any contractual legal relationship, nor imply one.