There is no loss like the loss of a child. Parents are supposed to protect their children and watch them grow, and when a child dies because of someone else's carelessness, the grief is joined by questions that may never fully go away. If you are reading this after losing your son or daughter, we are deeply sorry.

Nothing on this page can lessen that pain. Our purpose is to give you clear, honest information for when you are ready: how these deaths happen, what needs to be preserved, the special rules Ohio applies when a child dies, the limits on suing schools and other public bodies, and the deadline that applies. For support with grief, siblings and day-to-day life, see our chapter on caring for your family.

How children's deaths happen

Children depend on adults to keep them safe, and most wrongful deaths of children involve an adult or a company that failed in that responsibility:

  • Vehicle crashes, including crashes caused by careless drivers and children struck while walking, biking or getting on or off a school bus.
  • Drownings in backyard, apartment, hotel and public pools, ponds and retention basins, often where a fence, gate, cover, lifeguard or adult supervision was missing.
  • Unsafe products, such as furniture that tips over, unsafe sleep products, toys with hazards, and defective car seats. See our page on defective product deaths.
  • Child care settings, including failures of supervision, unsafe sleep practices, and children left in vehicles.
  • Schools and activities, including transportation, sports and supervision failures.

What must be preserved, and how quickly

The evidence in a child's death is often held by others: a daycare, a school, a pool operator, a manufacturer. Some of it is lost quickly.

  • The product, if one was involved. Keep it, along with its packaging, instructions and receipt. Do not return it to the store or manufacturer, and do not let anyone take it for "testing" without legal advice.
  • The scene. Photographs of a pool gate, fence, latch, or the room where a product failed can matter enormously. Property owners often make repairs within days.
  • Video. Daycares, schools, buses, apartment complexes and businesses often have cameras that record over themselves.
  • Records and reports. Incident reports, staffing schedules, sign-in sheets, training records, licensing and inspection records, and bus and route records.
  • The autopsy and coroner's findings, which can answer questions about how and when the death happened.
  • Witnesses, including other parents, staff and children, whose memories fade.

A lawyer can send preservation letters to everyone who holds this evidence and request public records from government bodies.

The Ohio rules that apply when a child dies

Parents are presumed to have suffered damages. Ohio's wrongful death statute says the surviving spouse, children and parents of the person who died are "rebuttably presumed to have suffered damages by reason of the wrongful death" (R.C. 2125.02(A)). Parents do not have to prove that they loved their child or that the loss harmed them; the law presumes it.

Brothers, sisters and grandparents. Relatives such as siblings and grandparents may also benefit as "other next of kin," but unlike parents they must prove their damages (R.C. 2125.02(A)). For deaths on or after April 4, 2023, Ohio defines other next of kin as the nearest surviving relatives after accounting for the parents, children or spouse (R.C. 2125.02(I)(7)).

A parent who abandoned the child cannot benefit. Ohio law bars a parent who abandoned a minor child from receiving any benefit from the wrongful death action (R.C. 2125.02(A)). "Abandoned" means the parent, without justifiable cause, failed to communicate with, care for, and provide support for the child for at least one year before the death (R.C. 2125.02(I)(3)). The personal representative or a family member may ask the court for a finding of abandonment at a hearing (R.C. 2125.02(G)), and the personal representative may not distribute proceeds to a parent the court has found abandoned the child (R.C. 2125.03(A)(3)).

Young children cannot be blamed. The Supreme Court of Ohio has held that a child under seven years old is, as a matter of law, incapable of contributory negligence. Holbrock v. Hamilton Distributing, Inc., 11 Ohio St.2d 185 (1967). The defense cannot shift fault onto a young child.

Who brings the case. As in every Ohio wrongful death case, the claim is brought by the personal representative of the child's estate (R.C. 2125.02(A)). Often that is a parent. Any settlement requires the probate court's consent (R.C. 2125.02(E)).

Claims against schools, daycares and public bodies

Whether the claim is against a private or a public defendant changes the rules significantly.

Private defendants. Private daycares, private schools, apartment complexes, homeowners, businesses and manufacturers are generally subject to ordinary negligence and product liability law.

Public school districts, cities, counties and townships. In Ohio these are political subdivisions, and they are immune from liability for injury or death unless a specific statutory exception applies (R.C. 2744.01(F); R.C. 2744.02(A)(1)). Providing public education, operating parks and playgrounds, and operating public swimming pools are all classified as governmental functions (R.C. 2744.01(C)(2)(c) and (C)(2)(u)). The exceptions most often relevant in a child's death are:

  • Negligent operation of a motor vehicle by an employee acting within the scope of employment, such as a school bus driver (R.C. 2744.02(B)(1)). The Supreme Court of Ohio has held that this exception covers operating the vehicle, not supervising the conduct of passengers. Doe v. Marlington Local School Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360.
  • Physical defects within or on the grounds of buildings used for a governmental function, when caused by employee negligence (R.C. 2744.02(B)(4)).

Individual public employees, such as teachers or staff, are generally immune unless they acted with malicious purpose, in bad faith, or in a wanton or reckless manner, or another listed exception applies (R.C. 2744.03(A)(6)).

When a claim against a political subdivision succeeds, Ohio law prohibits punitive damages and requires most insurance and other benefits the family receives to be deducted from the award, although the statute says this does not limit the rights of a beneficiary under a life insurance policy (R.C. 2744.05(A), (B)(1) and (B)(2)(a)). The $250,000 limit that usually applies to noneconomic damages against political subdivisions does not apply to wrongful death actions (R.C. 2744.05(C)(1)). Our page on deaths involving government entities explains these rules further. These are hard rules, and they are honest reasons some claims cannot go forward. But they also leave real paths open, and a private party, such as a bus contractor, product maker or property owner, may share responsibility.

Who may be responsible, and which insurance may apply

Depending on the facts, responsible parties may include a driver and the driver's insurer; a pool owner, landlord or homeowner, often with liability or homeowner's coverage; a child care provider and its liability insurer; a school district or its contractors; or a manufacturer, distributor or retailer of an unsafe product. In crash cases, the family's own uninsured and underinsured motorist coverage may also apply.

What families can recover

Ohio law allows compensation for the losses a family suffers because of a child's death, including loss of services, loss of society (companionship, care, assistance, attention, guidance and more), loss of support from the child's reasonably expected earning capacity, and the mental anguish of the parents and other family members (R.C. 2125.02(D)). Reasonable funeral and burial expenses may also be awarded (R.C. 2125.02(C)(1)). Ohio's general caps on noneconomic damages do not apply to wrongful death actions (R.C. 2315.18(H)(3)). If the child lived for a time after the injury, the estate may also have a survival claim.

When both parents are the beneficiaries, they are equally related to the child and may agree on how the proceeds are shared; if they do not agree, or other relatives are involved, the probate court sets fair shares based on each person's loss (R.C. 2125.03(A)(1)). Our page on wrongful death compensation explains each category in more detail.

The two-year deadline

An Ohio wrongful death action generally must be filed within two years after the date of death (R.C. 2125.02(F)(1)). Claims against political subdivisions are also subject to a two-year limit (R.C. 2744.04(A)), and product cases have additional time rules. Read more about Ohio's two-year rule and its exceptions. We understand that many parents cannot think about a lawsuit for months, and that is natural. Still, evidence held by schools, daycares and businesses may be gone long before the deadline.

Common questions

Do we have to prove how much we loved our child?

No. Ohio law presumes that parents suffer damages when their child dies wrongfully. The evidence in the case is about who your child was and what your family has lost, and you can share that in your own words when the time comes.

Our child's other parent was never involved. Will that parent share in any recovery?

Not if the court finds that the parent abandoned the child, meaning the parent failed without justifiable cause to communicate with, care for, and support the child for at least one year before the death. A motion asking the court to make that finding can be filed while the case is pending.

Can we sue a public school?

Sometimes. Public school districts are generally immune, but there are exceptions, including negligent operation of a school bus and certain physical defects in or on the grounds of school buildings. Individual employees can be liable for wanton or reckless conduct. Each situation needs careful review.

A product was involved. What should we do with it?

Keep it, along with any packaging and paperwork, in a safe place. Do not return it, repair it, or send it to the manufacturer. It may be the most important evidence in the case.

What about brothers, sisters and grandparents?

They may also be beneficiaries as other next of kin, but unlike parents they must prove their damages. Their loss is real, and it can be part of the case.

This article is general information about Ohio law, not legal advice about your situation. Reading it does not create an attorney-client relationship. Deadlines and rules change; talk to a lawyer about your family's situation.