Every day, thousand of parents trust day care providers with their children. Their goal is to provide a safe place for their children during the day. Unfortunately, sometimes children are also hurt while at day care. So the question arises, “If my child is injured at daycare, is the facility liable for the injuries and medical bills?” The best answer is “maybe.” The personal injury and premises liability laws of your state will control the circumstances and extent to which your day care will be held liable. To establish a claim for negligence, you must prove that your daycare had a duty of care, breached the duty of care, and then because of that breach, caused an injury to your child.
“Negligence” means that the daycare facility failed to exercise due care to prevent a foreseeable injury to your child. “Due care” is that degree of care that a daycare facility would reasonably be expected to exercise to prevent a foreseeable harm. If you file a lawsuit against the daycare facility for negligence, you must prove that the daycare facility owed a duty of care to your child, that it breached the duty of care and that this breach was the actual and proximate cause of your child's injuries. The courts will look to several factors to determine if you have met your burden of proof.
Two main factors to consider include the cause of the injury or how the injury occurred. Was the injury caused by inadequate supervision of your child by daycare employees? If employees were negligent in the supervision of your child, then the daycare facility would be liable for the negligence of the employees’ actions during the course and scope of their employment. If an employee was doing something outside the course and scope of their employment, the daycare center may be able to claim that it was not liable.
Next, your focus should be on the nature of the injury and whether or not it was foreseeable and therefore something a reasonable daycare facility should have prevented. Examples of potential, foreseeable incidents include:
These are only a few potential examples of foreseeable harm that a reasonable daycare center could have taken precautions to prevent. There are numerous other potential causes of your child's injury at a daycare facility. The facts of your particular case and your child's injury will determine whether or not the daycare facility was negligent by failing to exercise due care.
Once you establish a duty of due care and a breach of that duty of due care on the part of the daycare facility, you need to prove causation. “Causation” requires the court to ask, “But for the daycare facility not taking precautions, would your child have been injured?” If the answer is no, then you have established the negligence of the daycare facility was the actual cause of your child's injuries. You then need to establish that the daycare facility was also the proximate cause of your child's injuries. “Proximate cause” asks whether there were there any intervening events that were unforeseeable that contributed to your child's injury? If the answer is yes, the daycare center is not negligent. If the answer is no, the daycare center is negligent. If you can prove all of these elements, you can establish that the daycare facility is negligent and, therefore, liable for your child's injuries.
Prior to filing a lawsuit, present your claim to the insurance carrier for the daycare facility. Before you sign a settlement agreement prepared by an insurance company, you may want to have an attorney who specializes in personal injury law review the proposal to make sure that you do not accidentally waive any of your child’s rights or remedies. If you are dissatisfied with settlement offers from the insurance carrier, then proceed to file a lawsuit for negligence against the daycare facility.
Before filing a lawsuit for negligence against the daycare facility, your child should complete medical treatment for his or her injuries. When treatment is completed and your child is released by the doctor, obtain the medical bills and medical reports. Your child's claim should include the medical bills and compensation for pain and suffering. The medical reports will document the nature and extent of your child's injuries and determine the amount of compensation for pain and suffering. Compensation for pain and suffering is an amount beyond the medical bills. Since your child is a minor, you will need to be appointed guardian ad litem to sue on behalf of your child.
If the case is settled with the insurance company for the daycare facility, no lawsuit will be filed. If the case is not settled, you must file the lawsuit prior to the expiration of the statute of limitations or you will lose your rights forever in the matter. Contact a person injury attorney in your state to learn what the deadlines are for your child’s situation.