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 14 million pre-school age children are in some form of daycare each day. ¹
Parents put their children with babysitters and daycare center employees, believing their children will receive care and be protected from undue harm. While most children in daycare remain safe, sometimes daycare providers are negligent and children are hurt.
Of course, your first reaction is fear and concern for your child’s welfare. Then comes anger and frustration that a child-care worker could be so careless.
You have a right to be angry, and your child has a right to injury compensation from the daycare provider – even if you signed a release.
Common Types of Child Daycare
Parents who hire nannies, au pairs, or babysitters in the home have much more supervision and control over the environment and care their child receives on a daily basis. For most working parents, at-home care is not available or practical.
Most child daycare is conducted outside the child’s home, in a variety of settings:
Child Care Centers are licensed by the state. They are usually stand-alone facilities but may be located in a church or community center. Child Care Center employees are trained in early childhood development, and staff has daily supervision.
Centers provide age-appropriate equipment and furnishings and are open for extended hours each day. Multiple workers care for the children in classroom style settings.
Family Child Care is usually in the daycare provider’s home with one adult caring for a small number of children. There is no monitoring or supervision of the child-care provider. While they may be licensed or state-certified to offer care, family daycare providers often have no formal training. Their child-care experience may vary.
Family, Friend, or Neighbor care providers are like Family Child Care in that the child is cared for in the provider’s home. For some parents, this is their only option for infant care when the mother returns to work. There is no licensing or monitoring, and caregiver experience may vary.
Pre-Schools are licensed by the state and typically located within a church or may be part of an existing school program. Workers are trained in child development and supervised daily. Pre-school programs are usually limited to children between the ages of three and five.
Before and After School care for children ages six through fourteen is usually located in the school or nearly recreation center. The caregivers are trained in child development, the activities are age appropriate, and the staff is supervised.
Understanding Daycare Release Forms
Most daycare centers 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.
Emergency Medical Care
Most release forms and waivers have language that allows the daycare provider to authorize emergency medical care for your child if you can’t be reached:
“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.”
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.
Your 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.
If a daycare center is using a release of liability to deny paying for your child’s injury,
speak to an attorney
immediately to protect your child’s interests.
Why Keep the Daycare Liability Clause?
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 won’t hold up in court.
Proving the Daycare Provider is Liable
What happens if your child is hurt while in daycare? You now know the liability clause in your daycare agreement 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 must prove the daycare center was negligent.
You and your attorney must show the following:
- 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.
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 Field Trip on Public Bus
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 Center 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 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 out, 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 pre-school on behalf of her injured child. The pre-school 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.
Example: Assuming the risk
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 forward and broke his nose.
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 injuries.
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.
Understanding 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 their 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.
To qualify as negligent, the event causing the child’s injury must be foreseeable. A daycare center isn’t liable for an unforeseeable event, meaning an event that couldn’t be anticipated by a reasonable person.
Example: Child Burned by Coffeemaker
A daycare center had a staff room for employee use that was off-limits to the children. 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.
The parents hired an attorney to represent their injured child. During the trial, the daycare center said it wasn’t foreseeable a child would go into the staff 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.
What to Do if Your Child is Injured
Good evidence will support your child’s injury compensation claim. Evidence is especially important when the injured child is very young and cannot articulate what happened to them.
You’ll need to show the daycare operator was directly responsible for your child’s injuries. You’ll also need documentation to support the type and scope of your child’s damages.
Prompt Medical Attention: Your child should have a thorough medical evaluation as soon as you discover 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. Immediately contact an attorney to help protect your child.
Photographs: Take pictures of your child’s injuries as soon as they happen, and throughout the recovery period.
Witness Statements: 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 to write down what they saw and to sign and date their statement.
Damages: 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.
Your child must have suffered some form of tangible or intangible loss due to the daycare provider’s negligence.
Request copies of your child’s records and bills for treatment following the injury, including:
- Emergency care
- Medical treatment
- Dental care
- Mental health services
Gather receipts for any out-of-pocket medical expenses and keep track of your mileage and parking fees when taking your child to appointments.
Take dated and 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.
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.
Consult an Attorney for Child Injury Claims
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 of age.
Just as the courts don’t allow parents to sign away their child’s right to compensation with daycare contracts, the courts also want to ensure any compensation agreements are in the best interest of your child.
Even relatively minor child injury claims should be handled by an attorney.
Daycare injury claims are complicated, and can become very complex if there are multiple parties involved, like in a bus crash.
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.
Take steps to protect your child’s future. There’s no obligation and no charge to find out what a skilled personal injury attorney can do for you and your child.
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Daycare Injury Claim Questions & Answers
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