Daycare Accidents and What Parents Need to Know
Parents inherently want to protect their children. From the second your child comes into this world, you love them unconditionally. You never want to leave their side and you will do everything in your power to protect them. When they become mobile, you put up gates near the stairs and safety latches on the cabinets. You carefully strap them into the car seat and stroller and you make sure the crib has a good consumer rating. Sure, there might be some minor mishaps – a scrape or a bump – but by being a concerned parent you’ve avoided more serious injuries.
However, as much as you love your child, there comes a time in every parent’s life that they may need to send their infant or toddler to daycare. Maybe it’s because both parents work, or the child needs socialization, or maybe the parent just needs some “me” time, so they can get errands done and improve their mental health.
We expect daycare facilities to protect our children’s welfare, just as we would ourselves. After all, they are supposed to be trustworthy, educated professionals that specialize in child care, right? Then, one day, while you are at work, you get that dreaded phone call. Your beautiful, innocent, child has been injured while at daycare. Your head starts to hurt. How could this happen? What should I do? You want answers.
The Daycare Accident Aftermath and Why Hiring the Right Daycare Lawyer is an Important First Step
In the aftermath of a daycare accident, there is a laundry list of things to do, but your first step should be contacting experienced day care lawyers – a team with the experience, knowledge and resources to jump right in and investigate your child’s incident.
At Sakkas, Cahn & Weiss, we have represented thousands of children injured at daycare, pre-school, and elementary school and we believe that parents have a right to expect their children will be safely cared for when they are placed into a child center. From our vast experience in the field, we have also come to understand that these types of cases are unique and have to be handled with care.
Proving Negligence in Daycare Cases
There are elements in daycare cases, and all accident cases that need to be met, to make out a successful case against a daycare facility.
- Your lawyer must show that the facility breached “its duty of care”. This happens when the facility or its employees either commit an act they know to be dangerous, omit practices in such a way as to likely cause danger, or violated State or City legal standards (this will be better explained down below). Good examples are poor supervision, non-compliance with industry regulations represent a breach of duty or an unsafe school or playground design.
- The lawyer must be able to demonstrate “causation” – this means the injury must be caused by the breached duty of care. An accident like two children bumping heads is not a breach – it’s just an unfortunate act of kids being kids;
- Finally, and with cases involving a child, this must be the hardest part, is proof and evidence – the lawyer needs to find evidence that the breach took place.
Why Finding Evidence to Prove a Daycare Accident Case is Difficult
Daycare cases have unique challenges that lawyers won’t face in almost any other type of case:
- First, the victim, the child, who would typically be our key witness, is often too young to tell their story – in fact, some victims are too young to speak;
- Second, even if they could speak, they couldn’t explain to you what happened – because they don’t know hot from cold or understand that gravity causes things to fall or that some doors slam shut when you let go of them;
- Three, a teacher or caregiver that either was responsible for the accident, or a witness to it, may intentionally not be forthcoming for fear of being fired, being charged with a crime or being sued civilly;
- Finally, in the aftermath of a daycare accident, the facility will go into defense mode – they will contact their insurance carrier and be assigned a lawyer. Their lawyer will then come out to the facility, speak to the responsible parties and review any videotape or other evidence. From there he will begin to begin to build defenses that can hurt your case.
Good Daycare Attorneys Need to be Part Detective and Capable of Acting Quickly on Your Behalf
Because the client often can’t communicate what happened, the attorney retained has to become more of a detective than a lawyer and must act quickly to preserve evidence.
Here are some of the things that need to be done immediately after an a lawyer is retained:
- The matter must be reported to the daycare facility;
- An investigation and accident report must be requested;
- Any suspected physical or sexual abuse needs to be reported to the proper authorities (abuse hotline, police, child protective services, childcare licensing agencies);
- The lawyer needs to work with the police and agencies to investigate what happened;
- All videos that might help identify what happened must be requested and procured;
- All regulations that apply to this particular type of daycare must be researched and compared to the school’s files;
- Photographs of the injuries and accident location must be taken;
- Medical records must be ordered;
- Past incidents at the facility must be researched to demonstrate patterns of behavior or pre-existing dangers or conditions;
By following these steps, a good daycare lawyer will gets answers to all of a parents questions from “what happened to my child?” to “why did my child get hurt?”
Why Did My Child Get Hurt?
I think we can all agree that most daycares intend to protect your child and return them home to you safely. Then how do so many youngsters get injured in daycare? The answer may be laziness or cluelessness or lack of funding, but below are the most common types of negligence that lead to injury and allow your lawyer to win money on your child’s behalf:
- Lack of supervision at the facility;
- Failure to secure objects so they don’t fall;
- Failure to cover up sharp edges and objects;
- Not recognizing small objects as choking hazards;
- Failure to maintain safe outdoor play areas, such as playgrounds;
- Giving small children access to playground equipment designed for older children;
- Failure to secure and make medications/toxic substances inaccessible to children;
- Failure to document a child’s health history . . . such as peanut allergies or diabetes;
- Leaving a child unattended in a car or other hot area for too long a period;
- Failure to use proper safety restraints with children in vehicles;
- Failing to monitor children that bite, slap or hit others;
- Using faulty smoke detectors or fire alarms
- Not recognizing drowning dangers such as kiddie pools or even puddles;
- Failure to do a complete background check on staff and volunteers who are working with the children.
State and City Child Care Regulations and Policies – They Must be Followed – No Exceptions
The Office of Children and Family Services, on behalf of New York State, require all daycares to comply with legal requirements they set forth. New York City-based day care centers, which are regulated by the New York City Department of Health, have similar requirements. These groups generally inspect every licensed child care program at least once annually. When a facility fails to follow those rules, they get in trouble with OCFS, but it also helps us, as your lawyers, prove their negligence.
Some of the requirements that daycare are to comply with are:
- Proper training;
- Pass a facility inspection by OCFS;
- Adequate supervision;
- Removing known dangers;
- Providing adequate access to food and water;
- Maintaining a proper caregiver to child ratio;
- Adhering to proper safety standards;
- Maintaining ease of access to first aid tools;
- Implementing adequate safety measures to prevent a child from exiting the facility or a stranger from entering without authority;
- Establishing policies that forbid all forms of mental, physical, sexual, and emotional abuse
- A collection of the child’s health history, including information about any special needs the child may have. Providing adequate access to food and water;
- A written record of all injuries sustained while in care and attempts to contact the parent or other emergency contact made if the child should require emergency medical treatment.
- Thorough background checks of all staff and volunteers who will be working with your child, as well as required training and regulations pertaining to the staff to child ratio at the facility.
- Requirements regarding the safe storage and administration of a child’s medication.
- Requirements regarding the provision of nutritious meals and snacks and the provision of a weekly menu for family.
- Written consent by the child’s parent allowing the daycare to transport the child in a motor vehicle and how many children and staff can be in that vehicle
- Requirements regarding safe space for indoor and outdoor play, including regulations regarding the safety of play surfaces.
A violation of these standards, in many cases, lead to fines and penalties, and the facility gets 30 days to correct them.
In addition, some violations are deemed “public health hazards” and need to be fixed within 24 hours.
The Liability Waiver – Let Your Lawyer Worry About It
When you first enrolled your child in the daycare facility, you probably signed a liability waiver, a document drafted by the child care facility’s attorney, which provides the child care facility some protection, if your child is injured while in their care.
Parents often think these prevent them from suing a daycare facility, and that is a large reason why they have parents sign them.
Yes, the waiver acknowledges that dangers exist and your child can get hurt, but it does not preclude you from bringing a claim against the facility, and holding them accountable for your child’s injuries, if the child care facility or an employee acted negligently.
Ways for Parents to Open an Investigation of Their Child’s Daycare Facility
Following an accident, there are numerous ways to initiate an investigation – you can have your lawyer help you with this or do it on your own:
- Call 311;
- Contact the state Office of Children & Family Services at 1-800-732-5207 to request they investigate a regulatory violation;
- Residents of New York City can make a complaint by calling 1-800-732-5207.
Getting Compensation For Child Injuries
No amount of money can ease the suffering of your child, but it can ease your financial hardship, as a parent, if you need to expend money for their medical care or surgery, or take time away from work to care for them. It can also provide your child with a substantial sum of money that they can use when they turn 18 years of age, to perhaps pay for college, or buy their first apartment.
That’s why you need to have a lawyer advocating for your child to make sure your expenses are covered.
Physical or Sexual Abuse at Daycare – a Different Problem
Accidents at a daycare facility, once again, are due to negligent behavior. However, the abuse of a child is not negligence – it is an intentional act designed to give the abuser some sick pleasure, while hurting an innocent. The assailant or predators deserve to go to prison for their actions.
What Are the Signs of Daycare Abuse?
With daycare abuse, the wounds are often not easy to see, as they may be psychological. Below are some signs your child might be exhibiting that might be signs of abuse:
- Unexplained bruises, cuts, or injuries
- A sudden and intense aversion to attending the daycare center
- Clingy behavior
- Discomfort with being undressed or allowing assistance with toileting
- Mood swings
- Aggressive behavior, including biting or kicking
- Reverting to behavior normally exhibited by a much younger child
- Urinary tract infections, soreness, or bleeding in the genitals
- Recurring nightmares
Your Next Steps Fighting Against Abuse
The suspicion that your child may have been abused at a daycare center is terrifying for parents and may cause feelings of guilt or disbelief. If you suspect that your child’s injuries were abuse-related or a result of dangerous conditions at a daycare facility, here are some tips as to what to do next:
- Seek help from a doctor and report your suspicions with the Department of Children and Families.
- Document any injuries or changes to your child’s behavior. Take photos of any injuries to preserve the evidence.
- Retain all copies of medical bills related to your child’s daycare related injuries so that you can be properly compensated
- Speak to other parents to see if they have noticed anything unusual at the facility or in their own children’s lives. Abuse or neglect situations are rarely isolated and there may be other children who are also at risk.
How Can You Afford a Lawyer with our Firm?
All New York lawyers handling personal injury cases in general or daycare accidents specifically, are paid a 33% contingency-fee-basis, which is only paid at the end of the case if the lawyer settles or wins at trial. In addition, the lawyers at Sakkas, Cahn & Weiss, LLP are happy to front your costs so there is no financial obligation to you until the case resolves. If we cannot secure a settlement or court-awarded offer, we will not charge you for our services. Additionally, we offer free consultations to help you determine whether you have a case.
Contact Sakkas, Cahn & Weiss, LLP – For expert and compassionate assistance in pursuing your legal options, contact our offices at 212-571-7171.