When a lawsuit suit is filed for injury to a minor child, the defense attorney should carefully consider the types of claims being made and who is making them. If the suit was not brought both by the minor child and the parent in his or her own right, on proper claims, there is a good chance a dismissal is in order.
In Nebraska, injury to a minor child results in two causes of action – one on behalf of the minor and the other on behalf of the minor’s parent. The minor’s claim is based on damages caused by the personal or bodily injury sustained by the minor, while the claim of a parent is based on the loss of services during minority and the necessary expenses of treatment for the injured child. See Connelly v. City of Omaha, 284 Neb. 131, 150 (2012). The rule that the claim for medical expenses belongs to the parent is derived from the common law, and is based on the rationale that it is the parent – not the child – who is contractually liable to pay for medical expenses the child incurs as a minor.
What defense attorneys must be on the lookout for is the unwary plaintiff’s attorney who files a lawsuit for injuries sustained by a minor, and fails to craft the complaint so that the claim for medical expenses is made by the parent, in his or her own right. In that event, the defense attorney should consider seeking a partial dismissal of the lawsuit. The minor is not the real party in interest to the claim for medical expenses, and therefore is not the proper party to prosecute the claim under § 25-301, Neb. Rev. Stat.
In determining who is and is not a plaintiff, or the capacity in which a party is suing, the defense attorney should look to the allegations of the complaint and not simply the case caption. For example, a parent may only be listed in the case title as next friend of the minor child, yet the parent may still be properly regarded as having made the claim for medical expenses in his or her own right if the allegations of the complaint appear to this effect. See State on Behalf of Dunn v. Wiegand, 2 Neb. App. 580, 589-90 (1994).
Keep in mind that exceptions to the rule may exist. For example, Kansas allows the child to recover pre-majority medical expenses where the child has been emancipated or where the parent waived or assigned the right of recovery to the child. See Wilson v. Knight, 26 Kan. App. 2d 226 (1999). Nebraska may recognize similar exceptions, but the matter of exceptions to the rule has not yet been addressed by a Nebraska appellate court. Practitioners should be mindful of this as the issue is litigated.
Again, any time a suit is filed for injuries sustained by a minor, be sure to examine who is and is not a party, and by whom the claim for pre-majority medical expenses is being made. You might find an easy way to dismiss one of your opponent’s claims.