Everyone knows that kids are magnets for bumps and bruises. Most of the time a child gets injured, it is nobody’s fault: just the product of an uncoordinated and accident-prone young person.
Injuries, however, are especially concerning when they occur outside the parents’ presence. More and more households include both parents in the workforce. That means that parents are increasingly seeking child care from professional facilities, such as daycares. The most recent data from the United States Census Bureau indicates that approximately 6.7 million children under the age of 5 years are enrolled in nonrelative care arrangements such as daycare centers or nurseries. A recent report indicates that parents are spending $42 billion per year on early child care.
No comprehensive statistics exist regarding injuries at daycares and other child care facilities. However, we know that many injuries — and deaths — occur every year. In 2012, records show that over 9,000 children were injured in child care settings over 29 reporting states. Almost 100 deaths also occurred during that year.
There is insufficient data available to determine how many of those injuries and deaths resulted from neglect or were just accidents. In all likelihood, a majority of the injuries resulted from accidents through no fault of the daycares.
Sometimes, however, an injury is caused by someone else’s negligence. While the vast majority of daycare providers are professional, safe, and competent, sometimes a daycare provider may be sloppy, unsafe, or simply make a mistake. When an injury occurs due to a daycare’s negligence, the daycare may be held liable for the child’s injuries.
Broadly speaking, negligence is the failure to use reasonable care. Depending on the situation, defining “reasonable care” can be difficult. It is the degree of care that an ordinary, prudent person would use under the same or similar circumstances. Negligence can include either action or inaction. For example, negligence could mean affirmatively doing something that a reasonable person would not do, or, not doing something that a reasonable person would do. See State v. Exxon Mobil Corp., 168 N.H. 211, 238 (2015).
In certain contexts, there exists a “special relationship” between parties, which imposes additional and heightened responsibilities on one of the parties. For example, a special relationship exists between a parent and a child, State v. Bruce, 132 N.H. 465, 471 (1989), attorneys and their clients, Halstead v. Murray, 130 N.H. 560, 565 (1988), and landlords and tenants, Tanguay v. Marston, 127 N.H. 572, 577 (1986). The existence of a special relationship recognizes that the dominant party has a significant amount of control or influence over the dependent party, which carries with it increased responsibility to safeguard the welfare of the dependent party. See McLaughlin v. Sullivan, 123 N.H. 335, 338 (1983).
Relevant here, the New Hampshire Supreme Court has determined that “schools share a special relationship with students entrusted to their care, which imposes upon them certain duties of reasonable supervision.” Marquay v. Eno, 139 N.H. 708, 717 (1995). The reasons supporting a “special relationship” between schools and students — in particular, the parent’s entrustment of the student to the school’s care and protection, and the parent’s expectation that the school will be safe — apply with even greater force to daycares, which have very young charges.
As courts have noted, “small children in a licensed day care facility are a particular protected class . . . consist[ing] of uniquely vulnerable persons . . . .” Laska v. Anoka County, 696 N.W.2d 133, 138 (Minn. Ct. App. 2005). The relationship between a daycare provider and a child “is an economic one in which the day care center in exchange for a fee agrees to care for the child and to protect the child from harm during the time the child is in the custody of the day care center.” Applebaum v. Nemon, 678 S.W.2d 533, 535 (Tex. Ct. App. 1984). Therefore, daycare providers have a heightened duty to protect the children in their care. This is codified in New Hampshire statutory law, which prohibits any child care provider from “car[ing] for a child in a manner which endangers the health, safety or welfare of the child.” RSA 170-E:4, II.
In recognition of the importance of safeguarding young children, New Hampshire has extensive licensing and safety requirements for daycares in the state. See RSA 170-E. These regulations are promulgated by the Department of Health and Human Services. For example, child care providers are required to maintain valid first aid and CPR certifications. See N.H. Admin. R. He-C 4002.19. Additionally, daycares have limits on the number of children allowed in the facility. Id. at 4002.31. More generally, the state regulations require that “child care personnel shall supervise every child in care at all times.” Id. at 4002.19. The state Child Care Licensing Unit has authority under the statute to investigate rules violation or injuries, mandate corrective actions, and assess other penalties.
It can be hard to prove that an injury to a child at a daycare facility was caused by a daycare’s negligence. That’s because the injured child may be so young that they aren’t able to reliably describe how they were injured. Similarly, the only witnesses may be other young children, or daycare staff with a vested interest in staying silent.
Therefore, courts sometimes apply the doctrine of res ipsa loquitor to injuries at daycares. The doctrine of res ipsa loquitor applies where there is no direct evidence of negligence (i.e., eyewitness testimony), but the facts and circumstances of the injury warrant a finding of negligence. The most common example of res ipsa loquitor is in medical malpractice cases, where a surgical instrument (such as a scalpel) is left behind in the patient’s body after surgery. Although the patient cannot testify how the scalpel got there (and likely no other eyewitnesses can/will testify), the law assumes that the only way the scalpel could have ended up there was through the surgeon’s negligence.
In Ward v. Forrester Day Care, 547 So. 2d 410 (Ala. 1989), the Alabama Supreme Court applied the doctrine of res ipsa loquitur to an injury that allegedly occurred to a young child while he was in a day-care center. In Ward, the 11-week-old child was left at a day-care center, and, when his parents later returned to pick him up, they noticed swelling on the child’s right wrist. The child was later diagnosed with a broken arm. The parents testified that the child had not been injured while under their care, and the employees of the day-care center testified that the child had not been injured while at the day-care center. The Alabama Supreme Court concluded that the doctrine of res ipsa loquitor could be applied in Ward. See also Persinger v. Step by Step Infant Dev. Ctr.,
S.E.2d 333, 335 (Ga. App. Ct. 2002) (res ipsa loquitor applied where a one-and-a-half year old child broke his leg at a day care center); Zimmer v. Celebrities, Inc., 615 P.2d 76 (Colo. App. Ct. 1980) (res ipsa loquitor appropriate where two year old child suffered unexplained skull fracture while in the defendant’s child care facility).
If your child was injured at a daycare and you believe it was due to negligence, contact an attorney for a consultation. You may be able to reach a settlement with the daycare’s insurance company without having to go to court. Insurance companies know that a young child is a sympathetic victim, and will sometimes offer generous settlement packages to avoid a trial.
The attorneys at Welts, White & Fontaine, PC have decades of experience in personal injury law. We offer free consultations, and you don’t pay attorney’s fees unless you get a successful recovery. Welts, White & Fontaine is Nashua’s largest law firm and serves clients statewide. To discuss your case with one of our attorneys, please call us at (603) 883-0797 or contact us here.
Author: Israel F. Piedra
This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.
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