Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 4, 2020

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If your child is injured in a day care center, the personal injury and premises liability laws of your state will control the circumstances and extent to which your day care will be held responsible. 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.

Before a Day Care Center Lawsuit

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.

Day Care Center Duty of Care

In order to prove negligence caused your child’s injuries, you must show 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, and is often determined based on how the circumstances that led to your child’s injury compare to how normal day care centers should be operated.  When evaluating an injury to determine if the day care center took the appropriate care, there are two main factors to consider:

  • 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.
  • The nature of the injury and whether or not it was foreseeable: When evaluating this factor, a court will ask whether or not the circumstances were ones that a reasonable daycare facility should have prevented. Examples of potential, foreseeable incidents include:
    • A child injured after falling from playground equipment;
    • A child injured due to unsanitary conditions;
    • A child injured after bumping or tripping over an object.

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.

Proving Causation

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.

Settlement Offers In Day Care Lawsuits

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.

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.