Special Rules for Minors

With the exception of medical bills and other out of pocket costs and losses, and claims against governmental agencies, governmental employees and possibly some humane societies, all states allow some extra time for making a claim on behalf of a person who is under the age of 18. However, at the risk of repeating what was written above, the law in this area is very complicated, there are exceptions to the rules and exceptions to the exceptions, and by “make a claim” the law means settle a claim or file a lawsuit, not just make a report or make an insurance claim. (Obviously, a case can be settled without filing a lawsuit but the settlement must be finalized before the statute of limitations runs out.)

As will be seen, one must calculate the period of time in which the injured child must file his lawsuit or finalize his settlement, and also must determine (a) whether his parents have a shorter amount of time to make a claim for the child’s treatment costs, (b) what that period of time is, if the parents indeed have a shorter period of time, and (c) whether, after minority ends, the child gets the full period set forth in the statute of limitations or a shorter period.  

In most states, the statute of limitations “tolls” during minority, which means it does not begin running until the victim’s 18th birthday — in other words, the clock doesn’t begin ticking until the child is 18 years old. For example, a California or Illinois victim who was injured at age three could wait until he turned 20, because the two-year statutory period in these states would not begin ticking until he turned 18. Georgia, Illinois, OhioTennessee, Washington and a number of other states follow this rule (and may have different limitations periods, such as Washington which has a 3-year statute, and Kentucky which has a 1-year statute). In Alabama and Nebraska, the age of majority is 19 rather than 18. In Kentucky, the age of majority is 18 or the date of marriage if the minor is married before reaching 18

Watch out for states having different statutes of limitations depending on whether the defendant’s liability is based on general negligence or a statute. For example, in Ohio a dog attack victim gets 6 years to bring a claim if and only if liability is based on the dog bite statute, but just 2 years if it is based on negligence or other causes of action. See Ohio Revised Codes sec. 2305.07 [6 years where dog bite liability is based on statute] and compare with ORC sec. 2305.16 [2 years where dog bite liability is based on causes of action other than a statute]. Arizona has a 1-year statute of limitations if liability is based on the dog bite statute, but 2 years if it is based on negligence or other causes of action. 

In some states, the part of a case which deals with reimbursement for medical expenses belongs to both the parents and the child (although double recovery is forbidden), such as Arizona (see Estate of Maddison Alexis DeSela v. Prescott Unified School District No.1, 226 Ariz. 387 (Ariz. 2011).) In those states, the statute of limitations tolls for the entire case. However, in other states the parents “own” the cause of action for reimbursement of medical treatment costs, and courts have ruled that the statute of limitations does not toll during the minority of the child victim. 

In some states the statute tolls during minority but then the child gets less time than the normal statute of limitations. For example, in Iowa (Iowa C. 614.8) and South Carolina the statute tolls during minority but upon attaining legal age the minor has only one year to file suit. In Oregon, a minor’s case tolls for up to 5 years but not past his or her 19th birthday (see ORS 12.160 subs. 2.)

In some states, parents and children have the same period of limitations when a minor is injured; examples include Arizona, California, Oregon (ORS 12.160 subs. 5) and Ohio (Fehrenbach v. O’Malley, 113 Ohio St.3d 18 (OH, 2007).)

However, some other states allow the statute to toll for the injured child but not for his or her parents. These include Indiana, Maryland, Minnesota, Texas, Washington and others. This matters only in states and situations where the parents have to sue on their own behalf, such as for medical costs which the minor can’t sue for.

In some states, courts 

Then there are the states that have unique rules.

  • In Virginia, a minor can bring a case until the day he reaches the age of majority, but the parents have to bring their claim for medical expenses within 5 years of the date of the accident. See section 8.01-243 subd. (B) of the Virginia Code.
  • In Maryland, a minor can wait until the day before he turns 21.
  • In Kansas, a minor can bring an action until one year after he or she turns eighteen, but never more than eight years after the accident. (Kansas Statutes 60-515(a).) So a three-year-old would have to file suit by age 11 in Kansas.

See generally L.S. Tellier, Annotation, What Items of Damages on Account of Personal Injury to Infant Belong to Him, and What to Parent, 32 A.L.R.2d 1060, §§ 13-14 (1953).

Important note:

If you are not an attorney and your case has an issue pertaining to the statute of limitations, consult with a lawyer immediately because there are numerous exceptions to the rules, as well as exceptions to the exceptions. Do not give up because of something you read here or anywhere, including law books. This is a confusing area of law because courts actually do not like enforcing the statute of limitations and therefore have created many loopholes in it. And never use the statute of limitations as a guideline as to when to take action; always take action immediately by obtaining the advice of a lawyer. See the short video, Should I Start My Case Now or Wait Until Later?