Minors in Tennessee can be a party to a cause of action for a variety of torts. However, “Minors cannot act for themselves in contracting with counsel and otherwise making provisions to institute [a lawsuit]. They must depend on someone to act for them.” Busby v. Massey, 686 S.W.2d 60, 62 (Tenn. 1984). Because minors cannot sue in their own names but must sue by another, id., an infant may sue by next friend if the infant “does not have a duly appointed representative, or if justice requires.” Tenn. R. Civ. P. 17.03. Rule 17.03 also requires the appointment of a guardian ad litem for an infant “whenever justice requires.” See, e.g., Thomas v. R.W. Harmon, Inc., 760 S.W.2d 212, 216 (Tenn. Ct. App. 1988). A legal guardian or any ordinary adult may institute a cause of action for a child. If the “next friend” is not a legal guardian, it is wise to file a motion before the Court to appoint a guardian ad litem who will have no conflict of interest other than that of the minor child. The legal guardian or such other adult representative cannot receive any proceeds from a judgment or settlement. Often such proceeds will be placed into a trust for benefit of the minor child. The Courts have interpreted this with some of the following quotes and citations:
Because minors cannot sue in their own names but must sue by another, id., an infant may sue by next friend if the infant “does not have a duly appointed representative, or if justice requires.” Tenn. R. Civ. P. 17.03. However, “[t]he minor is the real plaintiff, not the fiduciary in whose name he sues.” Busby, 686 S.W.2d at 62. The infant is “the real and proper party” while “[t]he next friend is neither technically nor substantially a party.” Williams v. Gaither, 202 S.W. 917, 918 (Tenn. 1918); see also March v. Levine, No. 01-A-01-9708-PB00437, 1999 WL 140760, at *3 (Tenn. Ct. App. Mar. 17, 1999) (“a next friend is not a party to the action”).
The most common cause of action where you will see a minor child as a party is in a wrongful death action pursuant to:
20-5-106. Injury resulting in death — Succession to cause of action — Beneficiary who is minor or legally incompetent.
(a) The right of action that a person who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by the person’s death but shall pass to the person’s surviving spouse and, in case there is no surviving spouse, to the person’s children or next of kin;
It follows that this is the most common cause of action for a minor child given that there would be a surviving parent of the minor child to prosecute the claim. What happens if the minor child does not sue prior to reaching the age of majority which is eighteen? The following statute permits a person turning eighteen to file suit for most torts prior to their turning nineteen. Most torts or personal injuries have a one year statute of limitation. It is often thought that this statute tolls the statute of limitations for one additional year. This does not apply to all torts. The language of the statute states “within the time of limitation for the particular cause of action but limits this time period to three years.
28-1-106. Accrual of right.
If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person’s representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.
If a child is injured due to a car accident or slip and fall, the parents, guardian, or such other “next friend” will commence a cause of action on behalf of the child. Upon settlement or verdict, the attorney will have to file a motion before the court for approval of attorney’s fees given the child cannot legal enter into a contingency fee contract with the attorney.
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