If your child suffers from severe anaphylactic allergies to peanuts, tree nuts, dairy, or other common allergens, you may live in constant worry that he or she will be inadvertently exposed at school, daycare, or another group setting. Even if your child's school has made steps to offer an allergen-free environment, these efforts can often be thwarted by an unaware parent who misreads a label, or another child who fails to wash his or her hands after eating a peanut butter sandwich for breakfast. If your child is injured or made ill after consuming an allergen while in the care of school or daycare, do you have the right to file a personal injury lawsuit? Read on to learn more about this area of law.
Can you file a personal injury lawsuit on behalf of your child?
Because children and teens aren't legally able to enter into contracts, when it comes to filing a lawsuit or negotiating a settlement, they need an adult to speak for them. This adult is most often a parent or guardian, but can also be a court-appointed advocate or family friend (with the court's permission).
Even if you don't have primary custody of your child, you will likely be able to file a personal injury claim or negotiate a settlement on your child's behalf as long as you can show you are doing so for your child's best interest. However, the courts will permit only one personal injury filing per incident -- so if both you and your child's other parent file separate lawsuits, these lawsuits will be consolidated or one will be dismissed.
In addition to filing a personal injury lawsuit on your child's behalf, you may be able to file on your own behalf to recover any medical expenses or other costs incurred as a result of your child's ingestion of an allergen. This separate case may also sometimes be consolidated into your child's case.
Do you have standing to sue your child's school?
Certain governmental entities -- like court systems, judges, and police officers -- are protected from lawsuit under a principle called sovereign or governmental immunity. However, this governmental immunity may be waived under certain circumstances, allowing you to file a lawsuit against the school. If the school has liability insurance coverage, it may consent to a lawsuit, and if you can establish that gross negligence took place, the state may waive immunity on the school's behalf.
Each state has its own specific laws governing the specific entities covered under a sovereign or governmental immunity clause, so you'll likely want to contact an experienced personal injury attorney in your state who can help you navigate the system and determine your available options.
What will you need to prove in order to succeed in your claim?
To establish that your child's school is legally and financially responsible for the injuries or illness caused by your child's ingestion of an allergen, you'll need to establish three factors.
First, you'll have to show that your child's school had a legal duty of care to keep your child safe and out of danger. You'll next need to show that this duty of care was breached, and finally that the breach resulted in physical or emotional harm. Establishing the latter two factors are generally fairly simple -- however, proving that your child's school owed your child a duty to not only keep him or her safe, but to ensure a school environment completely free of a specific allergen, may be somewhat complex.
Fortunately, there exists precedent in several states that may help you make this claim -- and if you've already jumped the sovereign immunity hurdle, ensuring that you receive compensation to cover your medical bills and other expenses associated with your child's injury may seem like an (allergen-free) cake walk.
