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.
Daycare Release Forms: Are they valid?
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:
- The daycare center had a duty of care (obligation) to protect your child from undue harm.
- The daycare center breached (violated) its duty of care.
- The breach was the direct and proximate (legally acceptable) cause of your child’s injuries.
- The injury must have been foreseeable by daycare staff or management.
- Proof of the nature and value of your child’s damages.
Duty of Care
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.
Breach of 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 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.
Direct and Proximate Cause
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.
State Laws and Regulations
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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Visitor Questions on Daycare Liability
Compensation after daughter was injured by running into cubby at daycare? My daughter who will be 3 soon attends a daycare in Texas. I went to pick her up today and the director met me at the door and informed me that my daughter had ran into the corner of the cubby shelf and cut her eyebrow open. She said she had an incident report that... Read More >>
Can I be sued for a business I no longer own after I was cleared in the initial investigation? I run a Texas-State licensed day care from my home. While changing a nine month old’s diaper, she fell back and hit her head. Long story short, the mother didn’t think it was necessary to go to the ER that day, but changed her mind the next morning. After a lengthy investigation, I was found... Read More >>
Child injured at daycare and taken to ER twice in 3 weeks… My 2 year old son had two recent injuries at his daycare center in SE Wisconsin. The first time he fell and cut his chin on the stairs while coming in from recess. This resulted in an immediate trip to the ER and 6 stitches in his chin. The second incident occurred 2½ weeks later... Read More >>
Child’s arm broken by daycare teacher… My child’s arm was broken when the daycare teacher snatched her up from the floor. The teacher was fired and the center was cited by the state. Can I ask the daycare to compensate me for the medical bills, days off from work, and cost of fees at new daycare? Also, how long do I... Read More >>
Broken teeth from fall at daycare… My daughter was attending daycare and I received a phone call at work telling me she had fallen and her two front teeth were broken. I was also told it was not emergency. The story I was told was that a visitor had came in to visit her granddaughter who also attended the daycare. She... Read More >>
Infant bitten and injured in daycare… 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... Read More >>
4 year old fell from monkey bars… According to the accident report the children were given a verbal warning to remove mittens prior to playing on monkey bars. My daughter had mittens on, went to grab the monkey bars, and fell with her zipper going into her chin. The supervising teacher was on the other side of the playground equipment watching children... Read More >>
Child injured under daycare supervision… My 1 year old Son started a new Daycare three weeks ago and each week encountered a different problem. The first week he picked up Strep Throat. No big deal here, as I understand that picking up germs from other children is inevitable. The second week he was injured after his teacher closed a door... Read More >>
Teacher lied about my infant son’s concussion… My 8 month old son was at his daycare and his teacher placed him on a rocking toy. The toy did not have any restraints or belts and he almost fell off twice as she was trying to sit him on it. She sat him up and left him on the toy, turned her back... Read More >>
Injury caused by clipping nails… My son, who is two years of age, had his finger nails clipped by his daycare center without any consent by us, his parents. I picked him up one day to find his nails clipped to the finger tip by the daycare employee, which caused all 10 digits to bleed. The daycare got cited for... Read More >>
Numerous injuries from negligent daycare… My child is at a daycare where I previously worked. Since leaving, my son has been bitten numerous times with no change in routine to stop the behavior. Considering I have worked there, I know it is the same child. One week my son was bitten three times back to back. The daycare tried to... Read More >>
Daughter fell off monkey bars and broke her arm… While at daycare, my 4 year old daughter fell off the monkey bars (which are behind a building out of view of the teachers) and suffered a buckle break in her left wrist. I had signed a packet when she was enrolled that included the following: “You or your family insurance is responsible for cost... Read More >>
Child injured at care provider’s home… My son was injured at a care provider’s home. She is a stay at home mom, not a licensed daycare. He ended up with a sewing needle (3″ or so) in his forearm (a freak accident, yes). It must have been stuck in the wood on the couch, sharp side first. He ran by and... Read More >>
My son broke his arm on the playground at church pre-school… My son is 4 yrs old and yesterday he went to this church pre-school in our community for a few hours. He usually doesn’t sleep after coming home, but yesterday was different. He took a nap right after school and started complaining about his left arm. We read the note sent home with him from... Read More >>
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... Read More >>
Does a parent have the right to review video containing their child? I have been told by my child’s daycare that I’m not allowed to view the video materials during the times that my child has been written up with a behavioral or accident report (aka. hit, falls down), and that it’s a Freedom of Information Act issue. Today I was approached while picking up my children... Read More >>
Liability of Parent vs. Daycare… My son and another student were at daycare, playing outside on the playground. They had a small plastic toy car and proceeded to toss this toy into the play house repeatedly. Both boys were doing the same actions, however when my son tossed it up, it bounced off and unfortunately hit the other student. This... Read More >>
My 9 month old daughter suffered an ankle tibia fracture at daycare… On July 1st, my 9 month old daughter was crying uncontrollably when we went to the daycare to pick her up at 5:30pm. We were informed that a free standing metal gate fell on her ankle around 5pm. We took her to the urgent care and her ankle was x-rayed. They put a cast on... Read More >>
Child Neglect in Daycare Facility… The first serious incident occurred 2 weeks ago. I got my son from the daycare facility and later when went to take his shirt off for a bath I saw he had FOUR bites from another child on him. The next day I confronted the director and teacher about it. They said they had 12... Read More >>
Can my daughter sue for a facial injury she received 10 years ago? At age 5, while attending a day camp at a nature park in Bergen County, NJ my daughter tripped and hit her head on what was believed to be a tree root. No adult who was supposedly supervising the group witnessed the accident, stating they were playing hide and seek with the kids. My daughter... Read More >>
Son broke nose while on a field trip with his daycare… My son went on a field trip to a “bounce house” with his daycare provider. After just a few minutes there he fell out of one of the attractions face first onto a mat. One of the teachers in attendance called me and told me that he got hurt, his nose was black and blue... Read More >>
Child Has Permanent Scar from Fall at Daycare… My daughter was at daycare and she fell and busted her nose. The daycare notified me by phone and I also signed an accident report. Now my daughter’s nose has a scar. She has been to the doctor who referred us to the dermatologist. The dermatologist said the scar is a direct result of the... Read More >>
Two year old suffers buckle fracture at daycare… Our 2yr old suffered a buckle fracture while at daycare. The daycare doesn’t know when or how it happened. They are being good about the incident and very caring but we are upset. She was in a soft cast for a week and has trouble walking right now, but the surgeon says she should recover... Read More >>