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Who Can Sue on behalf of a Child who is Injured?

Posted by Louis H. Thomas III | Sep 17, 2020 | 0 Comments

An injury to a child is one of a parent's greatest fears.  Some injuries are more severe than others and may result in extensive medical treatment and medical expenses. Slip and falls, dog bites, car accidents, and even abuse from caretakers are common injuries sustained by children. When these injuries are caused by the fault or negligence of others, then the injured child is entitled to compensation for damages.  

In Louisiana, an unemancipated minor cannot file a lawsuit on his or her own behalf, because Courts believe that minor children lack the capacity to fully understand the complexities of the law and legal process. However, just because a child cannot file a lawsuit on his or her own does not mean that he or she is not entitled to compensation for injuries caused by another. In Louisiana Courts allow, the parent, legal guardian, or natural tutrix to follow a lawsuit on behalf of a minor child.  

What types of Tutorships are there under Louisiana Law to file a suit for a child who is injured?

Louisiana Civil Code Art. 247 provides for the following tutorships:

There are four sorts of tutorships:

Tutorship by nature;

Tutorship by will;

Tutorship by the effect of the law;

Tutorship by the appointment of the judge.

Who is the Natural Tutor to file suit on behalf of a child that is injured?

Under tutorship by nature, it is a tutorship by right under Louisiana Civil Code article 248 and an individual need not be appointed by a court.  Tutorship by nature is addressed in both the Civil Code and Code of Civil Procedure.  Both parents are considered natural cotutors of the child.

Louisiana Civil Code article 250 states:

Upon the death of either parent, the tutorship of minor children belongs of right to the other.  Upon divorce or judicial separation from bed and board of parents, the tutorship of each minor child belongs of right to the parent under whose care he or she has been placed or to whose care he or she has been entrusted; however, if the parents are awarded joint custody of a minor child, then the cotutorship of the minor child shall belong to both parents, with equal authority, privileges, and responsibilities, unless modified by order of the court or by an agreement of the parents, approved by the court awarding joint custody.  In the event of the death of a parent to whom joint custody had been awarded, the tutorship of the minor children of the deceased belongs of right to the surviving parent.

All those cases are called tutorship by nature.

Louisiana Code of Civil Procedure art. 4061.1. Natural tutor; action for damages on behalf of child

A. [T]he natural tutor of a minor child may file an action for damages based on a delictual obligation without the necessity of qualifying as tutor pursuant to Article 4061 and without the necessity of filing a petition pursuant to Article 4031, if the natural tutor is any of the following:

(1) The surviving parent of the minor child.

(2) The parent under whose sole care the minor child has been placed when the parents are divorced or judicially separated from bed and board.

(3) The mother of her child born outside of marriage not acknowledged by the father, or acknowledged by him alone without her concurrence.

When a child under your care has suffered an injury, it is important to speak to an attorney to discuss the rights of the child, and to determine the necessary steps to proceed with a claim. If your child has sustained an injury, he or she may be entitled to compensation. Please give us a call for a free consultation to discuss your rights, and possible claim. This is provided for informational purposes only and not for the purpose of providing legal advice. 

About the Author

Louis H. Thomas III

Louis H. Thomas III is a trial associate at Kiefer & Kiefer. He specializes in civil defense and personal injury litigation. He has not only received favorable bench trial verdicts, but he also has extensive motion practice experience. He is consistently able to deliver excellent results for his ...

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