If my son was over at a neighbor’s house and he was injured, how do I ask my neighbor to file a personal injury claim to pay for medical bills/pain and suffering?

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If my son was over at a neighbor’s house and he was injured, how do I ask my neighbor to file a personal injury claim to pay for medical bills/pain and suffering?

An adult (the father) set off a firework which burned my son. The kids (including my son) were sitting in the garage and a firework misfired and bounced into the garage striking him in the abdomen, arm and hand. I took my son to the ER and he had 1st and 2nd degree burns.

Asked on July 7, 2014 under Personal Injury, Indiana

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

You ask him to file a claim by asking him--you can do so orally or in writing, informally or more formally, whatever you think will work best. If he will not voluntarily do so, however, you would have to sue him to try to recover money (you do *not* sue his insurer; you have to sue him personally, since he is the one you believe was at fault, and if he has relevant insurance coverage, his insurer may step in to settle or defend the case).

Before doing that, think about whether it's worthwhile. First, of course, expect that if you do this, you will of course poison relations with this neighbor (you sued him, after all), and you may be living near him for years to come.

Second, you can only recover an amount of money equal to your son's medical costs and also "pain and suffering" if your son suffers some reasonably significant and long-lasting impairment; for example, weeks of restricted activity or more than modest pain. A 1st degree burn would definitely not support any pain and suffering award--that's basically a sunburn. A 2nd degree burn *might* support some award, depending on how extensive and location of the 2nd degree burn(s). However, it would typically support, unless it was much of his body, a relatively small amount.

3) To win, you'd have to show  that the father was unreasonably careless, or negligent, which may well be the case, but will depend on the exact thype of firework, how he was handling it, where the spectactors were sitting, etc. There may be negligence, but it's not a given.

4) You'd also have to show that you and/or you son were not also careless, since your carelessness will offset what you might get: so, for example, merely letting you son attend a fireworks show put on by an amatuer may be considered careless; or if you son sat too close, that contributed to his injury and would also be careless.

In short, depending on the exact circumstances, it's not a given that you'd win; and the amount you win may be limited. It may not be worthwhile.


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