Legal Question in Personal Injury in Illinois
How is co-negligence determined with a 5 year old pedestrian hit by a car?
Our son was hit by a vehicle when he chased a ball out into the street. He was fortunate not to have any head or internal injurues. He did have some extensive damage to his foot. He spent 3 wks in the hospital, his foot injuries were a crushed portion of his growth plate, a 3-4 inch portion of a nerve was gone, he needed tendon repair, reconstruction of some of the bones, and most of the soft tissue on his foot was gone. He underwent 2 free flap and skin graft surgeries, 2 debrisment surgeries and is now in physical therapy. We will not know whether the nerve graft worked for up to 1 yr. If it doesn't work, there is a possibility he could loose his foot. We did unfortunately give a recorded statement, thinking it was obvious that the driver was responsible. The independant adjuster told us to be prepared to hear from the insurance company and that Illinois is a co-negligence state and that meant our son is responsible also. We just aren't sure how a judgement where a 5 yr is involved would be made. We don't believe a 5 yr old really understands the difference between being responsible and negligent. What are our rights and how should we handle this?
2 Answers from Attorneys
Re: How is co-negligence determined with a 5 year old pedestrian hit by a car?
Illinois is a contributory negligence state, which means that if your son is more than 50% liable, he gets nothing and anything less than 50%, he can recover, but his award is reduced by the percentage of his negligence. He is held to the standard of a reasonable 5 year old, not an adult.
It sounds like you may have a case, but it will ultimately depend on the facts of the case such as what kind of street was it, were the parents around, how fast was the driver going, did he have a chance to avoid your son, etc.
If you wish to speak with me further about this matter, please call me at (312) 346-5578.
Re: How is co-negligence determined with a 5 year old pedestrian hit by a car?
Generally, a five-year-old child is incapable of negligence as a matter of law in Illinois, and the court may very well exclude any allegations, evidence, or argument in your son's case that he was negligent. One exception is that such a young child can be held negligent if the child is participating in "adult activities," but playing ball is clearly child's play, not an adult activity.
That said, "dart-out" cases, as cases such as yours are affectionately called, are difficult to win. The jury find your son at fault even if the jugde orders it not to.
You and your son have the right to fair, full, and reasonable compensation for his injuries, medical expenses, pain and suffering, and any loss of a normal life. To seek compensation you should first stop talking to anyone about your case except your child's doctors and potential lawyers. You should also immediately hire the attorney of your choice to seek compensation.
I would be happy to answer any other questions you may have, and you may call me at (630) 221-1755. Larry Stein.
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