Is daycare liable for 22-month-old girl’s finger smashed by the door

My 22-month-old girl got her right index finger smashed by the door at daycare. It happened when she was playing near the door just by herself, while daycare stuff was changing diapers and cleaning up and with other kids. Half of the nail fell off right away. She was taken to an emergency room, where she was diagnosed with finger laceration and open fracture of tuft of distal phalanx of finger. Her wound was closed, she received several stitches, and her hand is bandaged with splint. She is referred to a pediatric orthopedic surgeon for follow-ups. Daycare director said it was just an accident, not negligent. And since we, the parent, signed Release form before our girl was admitted to the daycare, the daycare is not responsible for any injuries occurred. We are located in Chesterfield MO.

Asked on October 3, 2017 under Personal Injury, Missouri

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

First, you need to review exactly what the release form says. While those are not absolute or 100% protection from being sued--there are some risks or liability you cannot release yourself from--they can be powerful protection, so this may limit or even bar your ability to sue.
Second, you can only sue for your out-of-pocket (not paid by insurance, Medicaid, etc.) medical costs and if your daughter suffers permanent impairment or disability, some amount for "pain and suffering." (For anything less than permanent impairment of a finger, the amount you could get would likely not be large.) However, to sue for anything other than your documented medical costs (e.g for pain and suffering), you'd need to hire a medical expert (i.e. a doctor) to examine your daughter, write a report, and, if necessary, testify in court. Such an expert could cost many hundreds to several thousands of dollars. Therefore, you could spend more on the lawsuit than you get back.
Third, even if it were economically worthwhile to sue, to win, you'd have to prove that the day care was negligent or "unreasonably careless"--that is, that they supervised your daughter less than the average reasonable daycare is expected to. No day care or school is expected to watch each child every second of the day--that would require a 1:1 teacher to student ratio, which no one has. So you'd have to show not just that she was unwatched for a moment, but that their supervision did not rise to generally accepted levels.


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