What to Do if Your Child is Hurt in Daycare: Can You Sue for Compensation?

Here’s what to do when your child is injured at daycare. Don’t be fooled into thinking you can’t sue a daycare center for compensation.

More than 12 million pre-school-age children are in some form of daycare.¹ While most children in daycare remain safe, sometimes providers are negligent and children get hurt.

When your child is injured, it’s natural to feel angry that someone could be so careless. You have a right to be angry, and your child has a right to restitution.

6 Steps if Your Child is Hurt in Daycare

Of course, your immediate concern must be for your child’s health and safety. Don’t hesitate to call 911 if your child has breathing problems or loses consciousness. After your child’s immediate needs are met, think about what you can do to build a strong case against the negligent or abusive daycare provider.

Good evidence will support your child’s injury claim. Evidence is especially important when the injured child is very young and cannot articulate what happened to them.

1. Seek Prompt Medical Attention

Your child should have a thorough medical evaluation as soon as you discover or suspect the injury. If your child’s pediatrician isn’t available, go to the emergency room or an urgent care center. Be sure to tell the doctor the child was injured at daycare.

If there are signs your child was physically or sexually abused, the doctor is legally required to notify the authorities.

2. Take Pictures and Video

Take pictures of your child’s injuries as soon as they happen and throughout the recovery period. Take videos of your child to show limping, changes in walking, or favoring the use of an arm or hand.

If you have footage from a nanny cam or home security system, save the video files with the date and time in the file name.

3. Preserve Tangible Evidence

If your child’s clothing or undergarments are unusually soiled, torn, or have blood spots, do not wash the garments. Take pictures of the items, then store the unwashed items in zip-top bags labeled with the date and description.

Diapers that may be soiled with blood or unusual substances should also be photographed and preserved. Double-bag the soiled diaper and store it in the refrigerator until the investigation into a potentially abusive daycare provider is complete.

Never give the actual garments to anyone other than your attorney or law enforcement. Photographs will suffice for the daycare center’s insurance company.

4. Talk to Potential Witnesses

Talk to anyone who may be able to provide a witness statement about the circumstances leading to your child’s injury, or patterns of activity that may shed light on how the daycare provider runs their business.

Other parents, neighbors, and school bus drivers may be able to offer helpful information to support your case. Ask potential witnesses for their contact information.

5. Consult a Daycare Injury Lawyer

Even minor injury claims should be handled by an attorney. Most states have special rules about financial settlements for minor children.

Some states require a judge to approve compensation for anyone under the age of majority, usually 18 years old. Courts want to ensure settlement agreements are in the best interest of the child.

Your child needs a skilled attorney to get the compensation they deserve for any injury, particularly in cases of deliberate daycare abuse, crippling injuries, permanent scarring, and other high-dollar claims.

Most personal injury attorneys offer a free consultation to the parents of injured children. There’s no obligation, and you can meet with more than one lawyer to find the right law firm for your family’s needs.

6. Gather Evidence to Support Your Case

You can’t succeed in a personal injury claim unless your child suffered some form of injury or loss. Insurance companies won’t compensate a claim solely because your child was put in danger or you think the daycare center acted negligently.

Gather evidence of fault as well as evidence of your child’s damages:

  • Request copies of your child’s medical records and bills
  • Save receipts for any out-of-pocket medical expenses
  • Keep track of your mileage and parking fees when taking your child to appointments

Make detailed notes of your child’s injury, treatment, and recovery. Include notes on your child’s pain levels, bad dreams, bedwetting, fears, and any other behavioral changes. Your notes can be an important part of proving your child’s emotional distress following their injury.

Daycare Release Forms Are Not Always Binding

Most daycare facilities require parents to sign a release or waiver 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.

Did I Sign Away My Child’s Right to Compensation?

Daycare agreements almost always have a section that says you give up the right to sue the daycare provider if anything bad happens to your child, called a “liability clause” or “indemnity clause.” In this situation, both liability and indemnity mean the daycare provider’s responsibility to pay for any harm to your child.

A standard daycare liability clause has language like this:

“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.”

The liability clause makes it clear the daycare provider is off the hook, no matter what. But can a parent sign away their child’s rights to compensation in case of injury? The answer is almost always no.

There have been plenty of daycare lawsuits brought by parents who signed agreements with an indemnity clause. In almost every case, the courts have decided it’s against public policy to relieve daycare providers of liability if a child is hurt while in their care.

It’s inappropriate for parents to sign away their child’s rights to compensation before an injury occurs. To do so would open the door for daycare centers to act negligently without concern about liability for their actions, especially against an innocent and defenseless child.

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 provider. For a parent to sign away the child’s right to sue isn’t appropriate or fair to the child.

Liability Clauses Discourage Injury Claims

Most daycare centers know the indemnification clause in their release form is worthless. Yet daycare providers still use the release as a way to discourage parents from filing injury claims on behalf of their children. It’s kind of a bluff.

As a parent, you have to decide if you want to sign the daycare’s release of liability. If you do, at least you’ll know the contract provision regarding indemnification for injuries likely won’t hold up in court.

Emergency Medical Care Clause

Most release forms have language that allows the daycare provider to authorize emergency medical care for your child if you can’t be reached. For example:

“The undersigned parent or legal guardian hereby expressly grants to the daycare center, and its authorized staff, consent to provide 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.”

In most cases, the emergency medical care clause in a daycare agreement is valid and in your child’s best interest.

Forcing a caregiver to wait until they receive 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.

Proving the Daycare Provider is Liable

To succeed in a personal injury claim or lawsuit (on behalf of your child) against a daycare’s insurance company, you must prove the daycare center was negligent.

To qualify as negligent, the event causing the child’s injury must be foreseeable. A daycare center is not liable for an unforeseeable event, meaning an event that could not be anticipated by a reasonable person.

You and your attorney must show the following:

  1. The daycare center had a duty of care (obligation) to protect your child from undue harm.
  2. The daycare center breached (violated) its duty of care due to negligence.
  3. The breach was the direct and proximate (legally acceptable) cause of your child’s injuries.
  4. Your child suffered real and verifiable damages.

Reasonable and Prudent Standard

A daycare center should do everything within reason to protect children in their care from bodily injury. The phrase “within reason” can have different meanings depending on the circumstances.

Courts use the “prudent daycare center” principle to determine the duty of care. In other words, what would a prudent daycare provider do under similar circumstances?

Example: Daycare Not Liable for 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 on the way 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 daycare center was not liable. The center did everything reasonably possible to ensure the safety of the children and could not have foreseen the public bus accident. The bus driver was solely responsible for the accident.

Example: Daycare Liable for Its Own Private Bus Accident

A different daycare center decided to take the children on a field trip to the same zoo. This center always used its own bus to take the children on field trips. While on the way to the zoo, the bus blew a tire. The bus driver lost control of the bus and crashed, resulting in serious injuries to several of the children.

A lawsuit was filed on behalf of the injured children. The children’s attorney presented evidence that clearly showed the tires on the bus were substantially worn, or “bald” before the crash.

The children won their case. The daycare center was found negligent for failing to maintain the bus with safe tires. The center knew or should have known bald tires are a safety hazard. A prudent daycare provider wouldn’t risk transporting children on a bus with bald tires.

Daycare Providers Have a Duty of Care

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 bus with bald tires, the daycare center clearly breached its duty.

Example: Child Injured by Lack of Supervision

There were twelve three-year-old children in a pre-school class. On this day, the teacher left the children alone while she spoke on her cell phone. While she was out of the room, 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 that had broken the skin. The mother cleaned and bandaged the wounds. 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 sued the preschool on behalf of her injured child. The preschool was found to be negligent, as the teacher breached her duty by leaving the children alone for an extended time. “But for” the teacher’s actions, the child would not have suffered the wounds and infection.

A daycare provider doesn’t get a free pass because of a liability waiver. On the other hand, the daycare provider isn’t automatically liable every time a child is injured. Sometimes, daycare accidents happen despite the best efforts of daycare staff members.

Example: Assuming Risk of Injury

A mother signed a consent form from the 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 in the house, the boy fell and broke two bones in his arm.

The mother claimed the daycare center was negligent and the consent form she signed was invalid. The case went to court, where the judge ruled the daycare center did not breach its duty of care and was not liable for the boy’s broken bones.

The permission form the mother signed wasn’t the same as a waiver of liability. It was merely consenting to allow her son to play in the bounce house. The mother knew her child was going to jump up and down, and there was a chance he could fall.

The bounce house was not inherently dangerous, and the daycare center had appropriate permission from the parent to allow the boy to play in it. As a result, the daycare center did not breach its duty of care.

State Laws and Regulations

Each state has its own laws and codes regulating the operation of daycare providers. In almost all cases, the state has the power to inspect daycare homes and centers and issue citations for code 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 that directly causes a child’s injury makes what the courts call a prima facie case (a Latin term meaning “at first look”). This means the parents don’t have to prove the childcare facility acted negligently. The mere existence of the code violation proves negligence.

Review your state’s Licensing Requirements for Child Care Facilities.

Daycare Injury Claim Questions