Visitor Question

Child injured at daycare and taken to ER twice in 3 weeks…

Submitted By: Anonymous (Milwaukee, Wisconsin)

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 in his classroom. He was running and tripped over a pillow on the floor (in the block area) causing him to fall. He fell face first into a metal teacher chair and busted his forehead open. Once again he was taken to ER and had 4 stitches put in.

I had him removed from the classroom and placed in another room. The daycare said they would pay the medical bills, but once I presented the first bill the director started to backpedal and say the center could probably only pay about $250 (which doesn’t even cover the co-pays from the two hospital visits).

What do you think about this? I know my son’s teacher was written up, but I want the daycare to cover the costs of all related medical bills. How can this be done? Thank you.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.

Answer

Dear Anonymous,

Start by reading the contract you signed when you first entered your son in daycare. It very likely it contains an Indemnification and Release of liability clause.

Here’s a typical example of some of the language found in many preschool contracts between parents and preschools:

“I agree I will assume the risk and full responsibility for any and all injuries which might occur to my child while on the premises of the preschool or participating in any off-site preschool program or activity; and to the maximum extent of the law, I agree to waive and release any and all claims, suits, or related causes of action against Preschool, their owners, teachers, or teachers assistants…”

To “pierce” the Indemnification and Release clause will require a showing of substantial negligence. Based on the facts, while the teacher should have been more attentive, her actions don’t appear to have been terribly negligent.

A “write up” shows the school was not pleased with the teacher’s actions. You can be sure if the school considered the teacher’s actions to have been substantially negligent, or that they posed a serious danger to the safety and well-being of your son or the other children, they would have immediately terminated her employment.

Presuming you signed a similar Indemnification and Release agreement, you can accept the amount of $250.00 or ask for a larger amount. However, it will all come back to that clause. You’d be best served by speaking with a local attorney regarding liability of the daycare and ability to pierce the indemnification clause.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney. Find a local attorney to give you a free case review here , or call (888) 647-2490.

Best of luck,

Published: October 19, 2017

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