Families have a legal right to pursue accountability
When parents entrust their children to a daycare facility, they have a basic right to expect to retrieve their children unharmed at the end of the day. Unfortunately, for too many families, that’s not the case.
When a child is hurt in a daycare setting, their parents or guardians can pursue accountability and financial compensation through the civil justice system. There are several legal doctrines that can be used to hold the daycare facility responsible.
Negligent supervision of children
Any personal injury claim requires negligence; that is, breach of a legal duty of care that causes or contributes to an injury. Many injury cases at daycare centers and other childcare settings involve negligent supervision; that is, a breach of the daycare center’s duty to properly supervise the children in their care. Some examples of negligent supervision include:
- A daycare employee who is supposed to be supervising children on a play structure looks down at their mobile phone while a child climbs to an unsafe part of the structure and falls down.
- A toxic cleaning solution is left in an unlocked location in the daycare center, and an unsupervised child finds and ingests it.
- Two daycare employees become engrossed in a conversation and fail to notice a fight between children in time to break it up before a child is injured.
It’s clear that a daycare facility is responsible for adequately supervising children in the facility’s care, but what counts as adequate supervision will vary depending on the circumstances. Factors that should be considered when determining whether adequate supervision was provided include:
- Age and developmental maturity of the child. A three-year-old requires much closer supervision than a 10-year-old under most if not all circumstances.
- Nature of the activity. Activities like swimming, playing sports, or climbing on a playground require more active supervision than reading or drawing.
- Experience level of the child in the given activity. A child who is known to be an experienced swimmer may not require as much supervision in the pool as one who is getting their first swimming lessons.
- Overall environment. Children may require more supervision at a park or on a field trip than inside the relatively controlled environment of the daycare itself.
In short, adequate supervision is a complex and situational concept, not a hard-and-fast legal standard. What’s clear is that a daycare facility needs to adequately monitor each child for potential dangers and appropriately intervene to eliminate any threats or dangers that do emerge. When facilities fail to do that, children can be seriously hurt or even killed.
Negligent hiring, training, and supervision of staff
Unfortunately, some children are harmed in daycare facilities by acts of abuse or neglect on the part of staff members. In these circumstances, the daycare center may be liable on the grounds of negligent hiring. For instance, if the facility failed to conduct a background check, and an appropriate background check would have turned up red flags in the staff member’s background, that could establish negligence on the part of the facility. Likewise, if the facility failed to adequately train and supervise its staff, and the child’s injury resulted from that lack of training or supervision, that could be negligence on the facility’s part.
Negligence per se
The legal term negligence per se refers to acts that are inherently negligent because they violate a specific legal requirement. In most if not all jurisdictions, there are specific statutory and regulatory requirements that childcare facilities have to meet, and a facility that fails to meet those requirements is automatically considered negligent. For instance, a state law may require a facility to maintain a certain level of staffing, e.g., one staff member for every five children. If the facility fails to maintain the legally required ratio, it can be held liable for any injuries that result from that violation of the law.
The ‘res ipsa loquitur’ rule and daycare negligence
Res ipsa Loquitur is a Latin term that literally means “the thing speaks for itself.” Essentially, it’s a legal doctrine that moves the burden of proof from the plaintiff (the injured person) to the defendant (the at-fault party) – the defendant is presumed negligent and has to prove they did not cause the injury. The three elements of a res ipsa loquitur claim are:
- The harm ordinarily would not have occurred unless someone was negligent.
- The harm was caused by something only the defendant controlled.
- The plaintiff did not contribute to the harm.
When injuries happen within the ostensibly controlled environment of a daycare center, res ipsa loquitur often applies because the nature of the facility meets these requirements. For example, suppose a mother drops off her son at a daycare center at the beginning of the day and the child has concussion symptoms when he is picked up at the end of the day. The specific cause of the concussion may not be known, but it clearly happened when he was at the daycare, and it is entirely reasonable to infer that negligence on the daycare’s part at some point during the day led to the injury.
What to do if your child is injured in a daycare
Of course, your first priority after any incident should be your child’s health. Take them to their pediatrician, an urgent care center, or an emergency room. Tell the provider that the injury happened at a daycare and explain as many details of the incident as you can. This also creates documentation of the injury to support a potential claim.
Depending on the circumstances, child protective services (CPS) or the equivalent in your state may investigate the facility. Law enforcement may also be involved if there is evidence that a crime occurred. However, it’s important to keep in mind that those investigations are focused on finding any violations of rules and preventing future occurrences, not necessarily to support a civil claim for compensation for the injuries sustained.
That’s why one of the first calls you make should be to an experienced daycare injury attorney in your area. Your attorney can deal with the facility’s insurance company on your behalf while you focus on your child’s health and recovery. In addition, an attorney licensed in your jurisdiction will be familiar with the specific laws pertaining to injuries to children in your state as well as the laws and regulations that apply to daycare centers.
The key is to talk to a lawyer as soon as possible to get a sense of your legal options and move forward before evidence disappears and deadlines expire. Speaking with an attorney isn’t a commitment to file a lawsuit; it’s an opportunity to get answers about your child’s legal rights. Schedule your free consultation with a daycare injury attorney in your area today.
