When you drop your child off at a day care, you trust that the staff will work hard to make sure that your child avoids harm and receives appropriate care. If your child is injured, it may be extremely distressing to find out that your child has been placed in danger by a caregiver. Unfortunately, injuries do happen at day cares, and sometimes they are quite serious or even fatal. If your child was harmed due to day care negligence, the California personal injury lawyers at The Law Office of Black & DePaoli, PC can bring a lawsuit on your behalf.
Day Care Negligence
Both state and federal laws provide regulations that govern day cares in California. Nonetheless, children may face hazards such as sharp instruments, improper cleaning or storage of toxic cleaning supplies, unprotected stairs, improperly maintained playground equipment, defective toys, abuse, or recalled furniture or toys. Children may be struck by falling objects or suffer animal bites (or bites from other children) in home day cares. They also face the risk of being hurt on a day care bus or in a day care car while being transported on an outing.
California Code of Regulations Title 22 § 101152 and related laws require strict compliance with rules regarding the ratio of staff to children, emergency contact information, first aid kits, staff ability to provide first aid, and the storage of toxic chemicals. For example, for children aged 18 months to three years, the ratio should not be greater than one staff member to six children. Day cares must have proper licensing and comply with the law.
If your child’s injuries were caused by insufficient staff or a failure to comply with safety regulations, you may be able to recover compensation under a theory of negligence per se, which is negligence as a matter of law. Negligence per se applies when a violation of a safety regulation or law causes the type of injury that the law was enacted to prevent. To prove ordinary negligence, you will need to prove the day care’s duty toward the child and you, a breach of duty, causation, and actual damages.
The injury must have been foreseeable to be compensable. If the staff members were not paying attention to your child, and as a result he was left outside where he was hurt, for example, this would likely be considered a breach of duty by a jury. A staff member reasonably could have foreseen that failing to pay attention to a child or bring him inside with the rest of the group could result in an accident.
You likely can recover compensatory damages if you establish the day care’s negligence. In California, these usually include both special (economic) damages like medical bills or out-of-pocket expenses and general (noneconomic) damages like pain and suffering.
Some day care negligence cases require the court to consider the validity of an indemnification clause in the day care contract. If a child is seriously injured due to day care negligence, there may be ways to get the clause invalidated. The law looks skeptically on these types of contracts, particularly when a matter of public interest is involved. Civil Code section 1668 provides that contracts with the goal of exempting someone from liability for fraud, willful injury, or a negligent violation of law are against public policy.