Concussion caused by another child?

by Anonymous
(Ohio)

A friend of mine's son was thrown into a pole by another child at daycare and hit his head. The daycare wrote up an incident report that was given to the mother when she came to pick her son, which was an hour and a half after her son hit his head on the pole.

Her son had a concussion, which was not detected by the daycare director or teachers, but was confirmed when they ended up at the emergency center within an hour of the mom picking up her son.

As a result, her son hasn't been able to go to school for two weeks, and the school is still charging the mom for the weeks that her son can't attend the daycare...along with the expense for the emergency room visits, doctor's appts, and many other things that have occurred since this incident.

We are in Ohio in Warren County. What should we do to make this childcare facility responsible for their lack of action, and for the monies that have been spent so far? How can the mother get restitution for everything that has happened? Thank you.

Visitor Question:
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ANSWER for "Concussion caused by another child?":

Anonymous (Ohio):

Schools have a legal duty of care to do everything within reason to be sure the school grounds are safe for students. From the facts you present, there doesn't appear to have been any negligent actions or omission of the school or its teachers.

In this instance, to prove negligence would require showing that the pole itself was dangerous, or negligently placed so children would likely run into it while playing. Or, there must have been evidence the school had previous reports of children being injured by the pole because of its placement, or that it was not protected by rubber, canvas, or other protective material.

Another means of proving negligence would be if the teacher wasn't properly supervising the children. If the teacher wasn't there to supervise, or the teacher knew there were other children who were causing problems (especially a child or children who were purposely forcing other children into the pole), and the teacher failed to act, the school might incur liability.

If the school had previous knowledge the child who pushed the other child into the pole had a history of aggressive behavior, and the school failed to remove the child or cause the child's parents to modify the aggressive behavior, then the school might have some liability.

If the school was a public one it might be protected by the legal doctrine of Sovereign Immunity. Sovereign immunity means government agencies or their employees are immune from lawsuits for actions or omissions, even negligent ones which result in property damage or personal injuries to others.

However, in recent years the Ohio Supreme Court has slowly began to abrogate the doctrine of Sovereign Immunity. More and more government agencies who have committed wrongs are being held liable for there negligence.

See: University of Akron, "OHIO'S ABROGATION OF SOVEREIGN IMMUNUTY"

Finally, parents are responsible for the acts of their children, especially when those actions result in property damage or personal injuries to third parties. The parents of the injured child might consider asking the parents of the other child to pay for the medical bills and resulting costs.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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