Each day, thousands of parents entrust their young children to daycare centers. Parents relinquish temporary custody of their children to the daycare center employees, believing their children will receive care and be protected from undue harm. While the majority of children in daycare centers remain safe, there are occasions when because of negligent conduct, children are hurt.
Daycare liability for children's injuries remains a hotly contested issue. Questions about the validity of releases or waivers of liability signed by the parents sometimes compound this issue.
Most daycare centers require parents to sign releases or waivers of liability. While there are various types of releases and waivers, most contain language providing for emergency medical treatment of the child and for the release of liability in case the child is hurt. Most release forms and waivers contain language similar to the following:
Section A. The undersigned parent or legal guardian hereby expressly grants to the daycare center, and its authorized staff consent to emergency medical care for the child when the daycare center is immediately unable to make contact with the parent or legal guardian and because waiting for the parent's or legal guardian's consent would jeopardize the health and welfare of the child."
Section A grants to the daycare center and its employees the right to authorize emergency medical care for an injured child when the parent is immediately unavailable. In most cases, the courts consider this part of a release form valid.
In all cases, the child's best interest is paramount. Forcing a daycare center to wait until it receives a parent's consent to call an ambulance or take a child to the emergency room isn't in the child's best interest. The delay in medical care might result in making the injury worse or the deterioration of the child's health.
Section B. The undersigned parent or legal guardian assumes all risk of injury or harm to the child while the child is at the daycare center or on approved field trips. The parent or legal guardian agrees to fully release, indemnify, defend, and forever discharge this daycare center, its owners, staff, employees, and agents of and from all liability, claims, demands, damages, costs, expenses, actions, and causes of action in respect of death, injury, loss, or damage to the child, or by the child, howsoever caused, arising out of or to arise by reason of or during the child's participation in the daycare."
Section B's intent is to release the daycare center from liability for a child's injuries and subsequent damages. These clauses, called Indemnity Clauses, effectively state you forfeit your right to sue if your child is hurt while in their care. But can a parent sign away his child's rights to compensation in case of injury? The answer is almost always no.
The courts have traditionally said it's against public policy to relieve daycare centers of liability if a child is hurt while in their care. The courts say it's inappropriate for a child's parents to sign away their child's rights to compensation before an injury occurs. To do so would conceivably open the door for daycare centers to act negligently without concern about liability for their actions, especially against an innocent and defenseless child.
Another reason for the courts' traditional stand against indemnity clauses for children's injuries is the parents' preemption (signing away) of the child's right to compensation. The courts take the position it's the child who's hurt and not the parent. As a result, the child should have an independent right to sue the daycare center. For a parent to sign away his child's right to sue isn't appropriate or fair to the child.
Most daycare centers know, or should know, the indemnification against injury clauses in their release forms is worthless. Yet, many daycare centers still use the release as a way to dissuade parents from filing injury claims on behalf of their children. It's kind of like a bluff.
As a parent, you can decide whether you want to sign the daycare liability release. If you do, you have the inner comfort knowing the provision in it regarding indemnification of the daycare center against liability for injuries is invalid.
What happens if your child is hurt while in daycare? You now know the daycare center's indemnification clause probably isn't worth the paper it's written on. What's next? To succeed in a personal injury claim (on behalf of your child) against a daycare's insurance company, you have to prove the daycare center was negligent. To do this, you must first understand the elements of daycare liability.
The elements of a daycare personal injury claim are:
It's presumable a daycare center will do everything reasonably possible to protect children in their care from undue harm and bodily injury. The courts use the "prudent daycare center" principle to determine duty of care. In other words, what would a prudent daycare center owner do under similar circumstances? The term "reasonably possible" is fluid, and can have different meanings under varying conditions.
Example: Field trip public bus accident
A daycare center decided to take the children on a field trip to the local zoo. The center used a public bus to travel with the children to and from the zoo. While en route to the zoo, the bus driver ran a red light and caused an accident. As a result, several of the children were hurt.
In this case, the court said the daycare center was not negligent. The court ruled the daycare center did everything reasonably possible to ensure the safety of the children. The public bus driver was solely responsible for the accident.
Example: Field trip private bus accident
A different daycare center decided to take the children on a field trip to the same zoo. This center used its own bus to take the children on various field trips. While en route, one of the bus' tires blew. The bus driver lost control of the bus and crashed, resulting in injuries to several of the children. During the trial, the injured children's attorneys presented evidence that clearly showed the tires on the bus were substantially worn out, or "bald."
In this case, the court ruled in favor of the children and against the daycare center. The court determined the daycare center was negligent. In its opinion, the court said a prudent (careful) daycare center would never put children on a bus with bald tires. By not installing new tires on the bus, the daycare center failed to do everything reasonably possible to protect the safety and wellbeing of the children.
When a daycare center fails to do everything reasonably possible to protect its children, it breaches its duty of care. In the case of the daycare bus with bald tires, the daycare center clearly breached its duty. There are, though, times when breach of duty isn't as clear. Let's look at a couple of examples...
Example: Lack of supervision
There were 12 three-year-old children in one daycare class. On this day, the teacher left the children alone while she spoke on her cell phone. While distracted on her cell phone, one of the children repeatedly bit another child in the back.
Later that evening, when the child's mother was bathing him, she noticed several deep bite marks on his back. The mother applied an antibiotic to the wounds and bandaged them. The next morning, the child had a high fever. The emergency room physician diagnosed the child with a staph infection likely caused by the bite marks.
The parent alleged in court the daycare center was negligent and breached its duty of care to protect her child. The court agreed and ruled the daycare center was negligent. The court said the teacher breached her duty by leaving the children alone. "But for" the teacher's actions, the child might not have the infection.
Example: Assuming the risk
A mother signed a consent form for a daycare center to permit her five-year-old son to play in a "bounce house," where children jump up and down on a large air mattress. While jumping, a child fell forward and broke his nose. The mother claimed the daycare center was negligent by breaching its duty of care, and the consent form she signed was invalid.
The court ruled the consent form the mother signed wasn't the same as a waiver of liability for the daycare center. It was instead merely consent to allow her son to play in the bounce house. The court found the mother knew her child was going to jump up and down, and there was a chance he could fall. The court went on to state the bounce house was not inherently dangerous, and as a result, the daycare center did not breach its duty of care.
To prove direct and proximate cause, you have to show the daycare center's breach of its duty of care was the sole cause of your child's injury, to the exclusion of an intervening force (something else that could cause the injury). The breach of duty of care must directly link to your child's injury.
Example: Defective chair
A daycare center purchased brand new chairs for the children to sit on. The chairs were of high quality and the type other daycare centers used. After a week of use, a student sat on one of the chairs. As she did, the chair leg broke, toppling the six-year-old child to the floor, resulting in injuries. The mother filed a lawsuit alleging the daycare center was negligent.
The court ruled against the mother and in favor of the daycare center. In its opinion, the court said the child's injury, although unfortunate, was not due to a breach of duty by the daycare center. An intervening force (the defective chair) was the direct and proximate cause and not the daycare's actions. The court dismissed the parent's case and suggesed the parents file suit against the chair's manufacturer and seller.
To qualify as negligent, the event causing the child's injury must be foreseeable. A daycare center isn't liable for an unforeseeable event.
Example: Child enters teachers lounge
A daycare center had a teacher's lounge that teachers used before and after school was in session. There was a coffee maker in the lounge. One day, while the lounge was empty, a five-year-old wandered away from class and into the lounge. While in the lounge, the student knocked the coffeepot onto himself and suffered serious burns.
At trial, the daycare center said it wasn't foreseeable a child would go into the teacher's lounge and knock the coffeepot over. The court disagreed and ruled in favor of the parents. In its opinion, the court stated it was entirely foreseeable a child might walk into the lounge, if left unlocked, and knock the pot of coffee over. It was, as the court said, a foreseeable event.
The final legal element in a claim of daycare liability is damages. You can't succeed in a personal injury claim unless your child suffered some form of injury or loss. Insurance companies demand proof of damages. They won't compensate a claim solely because your child was put in danger or you think the daycare center acted negligently. Your child must have suffered some form of tangible or intangible loss due to the daycare center's negligence.
Damages can include your child's medical bills, your out-of-pocket expenses for medications, slings, bandages, medical building parking lot fees, etc., the wages you may have lost while taking your injured child to and from treatment, and even a prorated amount for the gasoline used while tending to your child's medical needs.
Damages also include your child's pain and suffering and emotional distress. Only the child's pain and suffering is considered valid. With rare exceptions, a parent's pain and suffering is not considered part of their child's claim.
Each state has its own laws and codes regulating the operation of daycare facilities. In almost all cases, the state has the power to inspect daycare centers and issue citations when inspectors find violations. Examples of code violations include unsanitary conditions, inadequate supervision, exposed wiring, and other conditions that may endanger children's safety.
The existence of a code violation coupled with a child's injury forms what the courts call a prima facie (a Latin term meaning "at first look") claim. This means in the case of a child's injury, the parents don't have to prove the childcare facility acted negligently. The mere existence of the code violation presupposes negligence.
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