Daughter fell off monkey bars and broke her arm...

by Megan
(IL)

While at daycare, my 4 year old daughter fell off the monkey bars (which are behind a building out of view of the teachers) and suffered a buckle break in her left wrist. I had signed a packet when she was enrolled that included the following:

"You or your family insurance is responsible for cost of medical help or treatment due to accidents or illness while at the daycare center."

I would like to know if the daycare can be held responsible for our out of pocket expenses? Does our signing that release saying we're responsible for medical bills really absolve the daycare of all responsibility for any injuries on their property, even if they were negligent? Thank you.

Visitor Question:
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ANSWER for "Daughter fell off monkey bars and broke her arm...":

Megan (IL):

The agreement stating, "You or your family insurance is responsible for cost of medical help or treatment due to accidents or illness while at the daycare center..." is a form of indemnification clause.

While there are instances when indemnification clauses are overturned, particularly when a child is injured, from the facts you present, a court may find the clause reasonable and uphold it. You had the option of not enrolling your child at that daycare center. You chose to do so. While no one would blame you for being upset about your daughter's injuries, the language in the indemnification clause may prevail.

While indemnification clauses such as the one you signed are normally enforceable, such a clause can not survive a showing of gross negligence or a wanton disregard for your child's safety and well-being. Gross negligence is to be distinguished from normal negligence.

In your daughter's case, normal negligence would be present when the teachers failed to supervise your daughter as she played on the monkey bars. It would be reasonable to presume at that daycare center, days and even months go by without any child being injured on the monkey bars. However, sometimes children are injured while playing on monkey bars, running, jumping, and otherwise engaging in healthy physical activity.

While it is fair to say the teachers may have been negligent by not more closely supervising your daughter as she played on the monkey bars, there is a strong argument that even if they had been supervising more closely, it would have been very difficult for them to stop your daughter from falling and injuring herself.

From the facts you present, even if it could be established there was negligence, the negligence did not rise to the level of gross negligence or wanton disregard.

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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TYPE OF ACCIDENT
AUTO ACCIDENT
PERSONAL INJURY
WORKERS COMPENSATION
MEDICAL ERROR
YES! I WANT FAIR COMPENSATION