Infant bitten and injured in daycare...

by Eric
(Wisconsin)

I have two children that attend a day care provider in our hometown. My son is 3 years old and my daughter is 6 months of age. On Tuesday my wife was contacted and told that our daughter had developed a pretty nasty cough and was not able to sleep due to it. The daycare recommended we bring her to the doctor to ensure there wasn't a serious medical problem.

Since my wife was not able to pick up my daughter, I drove to the daycare center to pick her up and bring her to her Dr. appointment. I arrived to her classroom where I was given an "incident report" by her teacher.

Apparently while laying on the floor, my 6 month old child was bit by a one and a half year old boy. The teacher claimed she was unable to do anything in time due to feeding another baby at that moment. The bite left a noticeable red mark just above her forehead.

This day care center has multiple class rooms for different age groups. My daughter is in the newborn room where the oldest child is roughly 7 months old. 1-2 year olds are in other rooms, however they are allowed to "visit" the babies at various times during the day (doesn't make me happy). The child that bit her was apparently "Going in for a kiss" as described by the teacher. Great way to spread unnecessary germs.

Because the room is very dark to allow for the babies to better rest, I was unable to see the mark but took their word for it. I had her loaded into her car seat and I rushed her to the Dr. to make her appointment on time.

It was only when I took her out of her car seat to have her weighed at the Dr. that I noticed the bite mark, however to my utter shock it was only one of THREE marks on my child's head.

The bite mark was still very red, but there was another mark (gash) on the crown of her head that was much more disturbing. This mark was elongated and was deemed by the Doctor to not be a bite mark, but more likely the cause of her head hitting the corner of a chair or cabinet.

The doctor documented the injuries and the bigger mark (gash) needed to have antibacterial cream applied due to the skin being broken. These two marks were not reported to me by the daycare center and were most certainly not present when she was dropped off in the morning.

My question: What legal (if any) actions can I take, or should I take?

Needless to say, when I drop my 6 mo old daughter off at daycare the last thing I should have to worry about is her being bit by an older child who shouldn't even be in that classroom to begin with. Also, having visible marks from blunt force trauma on her head that was not documented nor explained by the daycare as to how they got there.

Visitor Question:
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ANSWER for "Infant bitten and injured in daycare...":

Eric (Wisconsin):

Your first action is to remove your daughter and your son from the daycare center. While the daycare center owner has a legal duty to do everything within reason to assure the children are safe from dangerous defects and undue harm, you have a corresponding legal duty to "mitigate" the danger to your child.

This means if you know there is a possibility that leaving your children at daycare may result in further injuries, you must remove them. If you don't, and your daughter or son are injured, you would have a difficult time succeeding in a negligence claim against the daycare center.

Ask the daycare center management or owner to reimburse you for your daughter's medical bills, any medications required, and even for your lost wages, if as a direct result of the injury you had to take time off from work to seek medical attention for your daughter.

There is another issue to be addressed. It's likely you had to sign a Release of some type when you initially hired the daycare center. Without seeing the Release it is impossible for us to know whether it contained language releasing the daycare center from liability for injuries to your son and daughter.

These Releases are common in day care centers. Not only are they common, but they are enforceable... up to a point. The Release is only enforceable for injuries which are relatively minor and common for daycare centers.

If your daughter's injuries were more serious, and the injuries would not have occurred if there had been adequate supervision, then the Release might not be enforceable and you would have the basis of a viable personal injury claim.

If you want to further pursue the matter, go to the Wisconsin Department of Children and Families Website and file a complaint.

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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