My son was visiting a daycare and suffered a tibia fracture...
We were visiting a facility in Texas that we were considering for care of our children. An associate at the facility took my son over to a slide and rode down with him while my wife was talking to the director.
While riding down the slide, my son's leg got stuck and the associate ran over his leg, causing a radial tibia fracture of his right leg. We filed an incident report with the facility, however have been ignored for the past 3 weeks by their legal counsel in regards to this issue.
What should our next step be? Do we have to file a lawsuit? Any thoughts or perspective you may have would be appreciated. Thank you.
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ANSWER for "My son was visiting a daycare and suffered a tibia fracture...":
Ryan (Humble, Texas):
You don't have to file a lawsuit at this time Before doing so consider a few issues...
1) "Premises Liability"
Premises liability means property owners have a legal duty of care to do everything within reason to assure people legally on their property are safe from injury and undue harm.
In this case, there is an argument the property owner failed to have in place employee rules and regulations governing whether employees should slide down a side with a child. Common sense would say it is inappropriate and unsafe for an adult to slide down a slide meant for one child.
As a result, there is a good argument the employee and facility were were negligent. With negligence comes liability for damages. Damages can include your son’s medical bills, your out of pocket expenses, your lost wages if you had to take time off from work to care for your son, and for your son’s pain and suffering.
2) "Respondeat Superior" or "Vicarious Liability"
Respondeat superior / vicarious liability means an employer may be liable for injuries sustained by a third person when an employee’s acts or omissions were committed within the scope of his or her employment. Once the relationship of employer and employee, and scope of employment are established, the employer becomes strictly liable for the damages sustained by a third person.
In this case, in addition to the facility owner’s responsibility based on premises liability, the facility owner may also be liable under the doctrine of respondeat superior.
Because of the serious nature of your son’s injury, and the legal issues involved, your son’s best interest would be served by consulting with several personal injury attorneys in your area. Fortunately, most personal injury attorneys do not charge for initial office consultations.
Gather up your son’s medical bills and records and visit with several injury attorneys. Once you do, you will have a better idea of the viability of a claim against the facility owner, and the expected outcome.
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,
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