Toddler Fell and Broke His Arm in Play Area at Mall...

by Aram
(Pasadena, CA)

At a visit to our local mall, we took our son (3 years old) to the mall play area. While in the playground, my son fell and broke his arm just above the elbow. He was taken to the ER by ambulance, and then transferred to another hospital where he was hospitalized for 3 days. He was in a full arm cast for a month in the Summer.

A few details:

- the signage at the play area requires children to remove their shoes in order to enter the play area. Most kids are in there with their socks, but our son was wearing socks when he slipped.

- the floor in the play area is carpeted but not padded. The structures that are within the play area have a smooth and slippery finish - just like a car.

- although there is a height limit, there is no supervision to ensure taller and bigger kids stay out.

- the mall security was fully aware of the incident and did take our information prior to leaving the mall.


- even with great insurance coverage, we have around $3,000 outstanding that the insurance company will not pay.

- both parents have lost a lot of work hours because of the appointments


- a planned family vacation was cancelled because the injury happened the week prior

- swimming lessons were cancelled for this child and have to be postponed for another year - forcing us to compromise our child's safety

- a 3 year old lost a whole Summer due to his injury


We have been contacted by the mall's claims department (unsolicited), but haven't discussed much with them or given them ANY additional details. We have been getting a lot of the bills now and are unsure if we should just deal with them directly, or if we should contact an attorney who specializes in personal injury to recover the out-of-pocket and possible pain-and-suffering costs. What do you think?

Any perspective is much appreciated. Thanks.

Visitor Question:
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ANSWER for "Toddler Fell and Broke His Arm in Play Area at Mall...":

Aram (Pasadena, CA):

Hopefully your son will fully recover. Deciding to retain a personal injury attorney is a personal choice and should be based on several factors:

A. Do you and your wife have the time to deal with the mall's representatives? To do so will require working first with the management or owners and then with their insurance company. Although they may appear empathetic to your son's plight, when it comes right down to it it's all about the money. They won't be quick to admit liability. Doing so will subject them to the possibility of future lawsuits over similar and less serious injuries at their play area.

B. To be liable for your son's injuries the management, owners, or both must have been negligent in their conduct. Just because your son was injured doesn't mean they are automatically liable. The entire claim may depend on whether the management and owners of the play area acted reasonably in providing as much safety as possible for the children. That will include factors such as the type of padding used, whether the play area was maintained properly, whether other children were injured in the same manner, etc.

Your idea of the value of your son's not being able to swim and its associated danger will probably be vastly different from their's.

Your lost vacation won't have much value to them.

Your son's lost summer won't have much value to them either.

When it comes to your lost days from work and those of your wife, you do have a valid claim for reimbursement for those lost wages. If you both took off time simultaneously you may have a more difficult time being reimbursed for both.

The value of your son's claim lies in his medical bills and pain and suffering. Unfortunately only in the rarest of circumstances will the courts permit financial recovery for the vicarious pain and suffering of a parent.

You might want to pursue the claim with them by yourself, but to do so you will have to have a figure in mind to represent all the medical bills, out of pocket expenses, lost wages, and most importantly, a final figure for your son's pain and suffering.

Most personal injury attorneys don't charge a fee for an initial office (not telephone) consultation. That might be a consideration.

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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