Protecting Injured Children

Oregon law reflect legislative intent to protect the rights of children in many ways. For example, Oregon law, with some notable exceptions, requires appointment of a conservator, guardian or guardian ad litem to make decisions in the child’s best interest. Oregon also grants children more time to assert suit than adults. And, most claims resolved under $25k require court approval.

Because of these protections, resolving a minor’s injury usually takes more time and more money than an adult’s. This is particularly so when a professional fiduciary (usually a bank or insurance company) is involved. On the other hand, use of a professional fiduciary can quell decision maker (parents, judges, arbitrators and jurors) concern regarding protection of claim proceeds. Parents should not take on a fiduciary role in litigation where the parent’s impartiality may be called into question. As discussed further below, Oregon law grants parents limited protection from claims alleging damage due to ordinary negligence.

Conservators & Guardians

When a minor is a named party to a lawsuit, the minor must appear through a conservator, guardian or guardian ad litem. A conservator is a person appointed by the court to manage the assets and income of protected or financially incapable persons. A guardian, like a conservator, is appointed by a judge when parents cannot, will not or should not care for the child. A guardian has broader responsibilities than a conservator. While a conservator is responsible for financial matters only, a guardian is responsible for all needs. A “guardian ad litem” (GAL) role is very different from a guardian’s. A guardian ad litem’s duty is to represent a child’s interests in litigation with the care of a responsible parent.

Appointing a GAL is generally easier, less expensive and faster than appointment of a conservator because a guardian ad litems does not have financial responsibility for the minor. For example, a GAL cannot authorize settlements where the minor’s settlement share after costs and fees isover $25k. Assignment of a conservator and court approval is required for larger settlements.

ORS 126.725 allows custodial parents to authorize settlements under $25k (minor’s share after costs and fees) if:

  1. Payment to minor after fees after medical costs, reasonable attorney fees and costs are less than $25k;
  2. Settlement funds are directly deposited into a FDIC savings account drawing interest in the child’s name;
  3. Custodial parent signs an affidavit affirming that minor will be fully compensated by the settlement OR there is no practical way of obtaining additional amounts; and,
  4. Funds in the savings account are NOT withdrawn until the minor is 18 or court otherwise allows.

With proper written consent, custodial parents may pursue claims for past and future medical expenses. It’s okay for parents and relatives to serve as conservators and guardians and they often do. However, it may not be a good idea for parent to act as a conservator or guardian where the parent is a potential witness  or where the parent’s conduct is at issue. A relative or trusted family friend may be a better choice in those circumstances. Where money needs to be distributed over a long period of time or where more care is needed to protect claim proceeds, consider use of a professional fiduciary, such as a bank or insurance company. Professional fiduciaries are usually the safest bet but the cost and level of service can vary widely, so close comparison of fiduciary options is advisable.

Parental Fault

Sometimes, a defendant will allege a child’s injuries are due in some part to the parent’s own fault. Oregon is a modified comparative fault state. Under Oregon’s scheme, a plaintiff’s award is reduced by the percentage the plaintiff is at fault with one wrinkle. The defendant’s comparative fault must be at least 50% at fault or recovery is $0.

Should defendant, in response to suit, file a “third party complaint” against a parent, the parent should seek independent counsel due to conflict of interest. If the parent may be at fault for injuries, the child has a potential claim the parent. This child / parent potential conflict is why a parent who may be at fault, probably should not act as a conservator, guardian or guardian ad litem.

On the bright side, Oregon law grants parents immunity from claims of ordinary negligence. A parent’s act must be “palpably unreasonable” to establish parental liability. The term “palpably unreasonable” is not specifically defined. However, “gross negligence,” defined as reckless disregard of the rights of others, appears to be the closest approximation. The term “palpably unreasonable” is not defined in the Restatement. However, the standard of “gross negligence,” which is defined as reckless disregard for the safety of others, appears close. Martin v. Yunker 121 Or. App. 77, 853 P.2d 1332 (1993); See Williamson v. McKenna, 223 Or. 366, 388-89, 354 P.2d 56 (1960); DeYoung v. Fallon, 104 Or. App. 66, 69, 798 P.2d 1114 (1990), rev. den., 311 Or. 222, 810 P.2d 854 (1991).

Extended Deadline for Injured Minors

Generally speaking, adults in Oregon have 2 years from the date of injury to resolve his or her personal injury claim. Suit within two years preserves rights. ORS 12.160 “stops the clock” or “tolls” the statute of limitations for claims of minors for up to 5 years but for no longer than one year after the child reaches majority (18). A parent’s claim for medical expenses is similarly tolled. There are some exceptions so don’t wait to get started with your child’s claim.

Your child will thank you and Richard Rizk can help. Call him at (503) 245-5677 to discuss your child’s personal injury claim.