Law Summary

VI. CHILDREN: CLAIMS, LIABILITIES AND RELATED ISSUES

1. Claims Arising From Negligent or Otherwise Tortious Injury to Child:
   
   Under Maryland law such an injury gives rise to two separate claims:
   
   
   1. A claim by the minor for damages sustained including pain and suffering, lost future wages, post-age of majority medical expenses and permanent disability. Garay v. Overholtzer, 332 Md. 339, 631 A.2d 429 (1993).
      
      
      1. Statute of limitations is not a bar to such a claim until three years after the child obtains the age of majority. The age of majority in Maryland is 18. Maryland Annotated Code Art. 1 § 24. See "coming of age" rule discussion at Section II A(2)(b) above.
         
         
   2. A claim by the parents of the injured child to recover medical expenses incurred. Arrabal v. Crew-Taylor, 159 Md. App. 668, 862 A.2d 431 (2004).
      
      
      1. As in other civil actions, this claim of the parents is barred if not brought within three (3) years of the date on which it occurred. NOTE: Although usually done so, the minor's claim and the parents' claim need not be brought at the same time. Arrabal v. Crew-Taylor, 159 Md. App. 668, 862 A.2d 431 (2004);Johns Hopkins Hospital v. Pepper, 346 Md. 679, 697 A.2d 1358 (1997). Note further that the claim for medical expenses which usually vests in the parents may be brought by the minor child even after limitations on the parents claim has run if the minor child can establish that she has paid or will be individually responsible to pay the medical expenses because (1) emancipation, (2) death or incompetence of the parents, (3) parents who are unable or unwilling to pay, or (4) by operation of statute. Johns Hopkins Hospital v. Pepper.
         
         
   3. Parents' civil liability for the tort of a child.
      
      
      1. Maryland does not recognize a cause of action for negligence in controlling one's child. Under Maryland law, absent proof of agency, inducement or approval, parents are not vicariously liable for the wrongful acts of their minor children. In Re John M., 129 Md. App. 165, 741 A.2d 503 (1999); In Re Zephrin D., 69 Md.App. 755, 519 A.2d 806 (1987). By statute, however, Maryland does permit a claim for restitution against the parent up to $10,000 in an action brought in the Juvenile Court as part of a delinquency hearing. Maryland Code Article 27 § 808.
         
         
   4. Contributory negligence of child as bar to child's claim:
      
      
      1. Consistent with Maryland law, a jury is instructed that the standard of care for a child is that which "a prudent child of her age, of her intelligence, of her experience and development would have used under the same or similar circumstances." Potomac Electric Co. v. Smith, 79 Md.App. 591, 558 A.2d 768 (1989).
         
         
         1. The Maryland Court of Appeals has held, however, that a child, under the age of five is incapable of contributory negligence as a matter of law. Miller v. Graff, 196 Md. 609, 78 A.2d 220 (1951); State ex rel Taylor v. Barilly, 216 Md. 94, 140 A.2d 173 (1958).
            
            
   5. Assumption of Risk:
      
      
      1. Assumption of risk principles apply to children as well as adults and standard remains an objective one. Kelly v. Catholic Archdiocese, 155 Md. App. 82, 841 A.2d 869 (2004).
         
         
   6. Negligence of the parent as a bar to child's claim:
      
      
      1. Such negligence may not be imputed to the minor so as to bar his claim. Maryland Courts & Judicial Proceedings Code Annotated § 10-910, except "in the somewhat extraordinary situation where the parent's negligence is such as to constitute an independent and superseding cause of the child's injuries [such as to excuse the passive negligence of another]." Caroline v. Reicher, 269 Md. 125, 304 A.2d 831 (1973).
         
         
   7. Settlements with minors:
      
      
      1. The friendly suit: So-called friendly suits were once common and involved the parties filing a complaint, a dismissal, a release and an order of satisfaction with the court all of which was approved by the court at one time. Maryland law does not require this process and increasingly, courts are refusing to approve such settlements as requested. In fact, court approval is only necessary in the limited circumstances where both parents are deceased and where there is no person responsible for the care and custody of the child. Under those circumstances the settlement is not effective unless it is approved by the court. Approval in such a case may be granted only upon the written application by the next friend, under oath, stating the facts of the case and explaining why the settlement is in the best interest of the child. Maryland Courts & Judicial Proceedings Code Annotated § 6-405;
         
         
      2. In all other cases, a release signed by a parent or next friend on behalf of a minor will be considered a binding agreement as to both parents and the minor so long as the contract is otherwise valid. Bernstein v. Kapneck, 290 Md. 452, 430 A.2d 602 (1981);
         
         
      3. As a general rule, it is advisable to include within the release of a minor's claim clauses such as the following: "I hereby represent that I am the parent (or guardian) of (the minor child) and have authority to sign this release with the intention to bind (minor child) to the matter set forth herein;" "I agree that the payment made pursuant to this release shall be preserved for the benefit of (the minor child)."
         
         
   8. A "child" is a person under eighteen years of age. Maryland Courts & Judicial Proceedings Code Annotated § 3-801(d).