My Child Was Injured At Daycare: Should I Call a Lawyer?

Despite sending your child to a safe, reputable daycare, there is always a small chance of injury. Children are highly susceptible to broken bones, lacerations, bruises, and even more serious injuries when playing on playgrounds or in large groups of other kids.

However, it is important to understand that not all injuries are cause for a civil lawsuit. Deciding whether or not to call a lawyer depends on a basic knowledge of negligence and how a personal injury case works.

“Negligence” is a legal term that means carelessness or lack of regard for the safety of others. Personal injury lawsuits hinge on this concept of negligence; generally, you must prove the defendant was negligent in some way in order to collect damages for an injury. Proving negligence requires proving three distinct things:

• The defendant had a duty of care. In the case of a daycare, this should be easy to prove; by virtue of you signing a contract and/or taking your children there every day to be looked after, the daycare provider has a duty to keep your children safe.
• The defendant breached the duty of care. This is where things can become more difficult. In order to prove a personal injury case, you must prove that the defendant breached his or her duty in some way. This means you must show the daycare provider(s) acted carelessly or failed to live up to their responsibility as a caregiver in some way. This could include failing to supervise children properly, maintaining an unsafe environment, or committing some sort of crime.
• That breach of duty caused an injury. Not only must you prove that the caregiver’s duty was breached, but also that the breach caused an injury. Without some sort of physical injury, emotional harm, or other serious effect of the negligent act, there can be no personal injury lawsuit.

The next step is typically to examine how the injury occurred and whether or not it was foreseeable. Investigating how the accident occurred can illustrate who and what is liable for the injuries caused. If the child was injured while the daycare worker was doing something within the scope of their employment (i.e. supervising other children or preparing a snack), the daycare facility could be liable for the injury caused. If the child was injured while the worker was doing something outside the scope of employment (i.e. taking a smoke break or texting), the worker him or herself could be liable, rather than the facility as a whole.

In addition, it’s important to determine whether or not the injury was foreseeable. Foreseeable accidents include tripping over an object, injuring oneself on broken playground equipment, or falling from a tall piece of equipment. Depending on the circumstances of the case and why the supervisor was not involved, a foreseeable accident will usually open up the daycare to a larger share of liability.