Is the daycare liable?

[dukie41181]

Earlier this week my daugter was involved in an accident at daycare which required medical attention. She had a gash on her chin that luckily was able to be taken care of with liquid stitches but the bigger issue is that she sustained dental damage that will require a tooth to be extracted. My husband asked me tonight of we should think of contacting a family friend who is an attorney to have the daycare help with medical expenses we will accrue now and down the road related to this accident. I dint think the daycare is liable unless there was negligence which I don't think there was and we couldn't prove if there was. As don't you sign a release of liability when the kids start? I really like our daycare and want to be on good terms with them. I'd be concerned taking any action if it makes sense to do so would put us on contentious terms going forward.

In case it's of relevance, my daugter went down a slide in the gym and tripped when she was getting off and fell forward into a window sill. Hitting the window sill caused the laceration and pushed her tooth into her gum. She is just under 3.

I'm open to all thoughts. Thanks!

[sntm]

I'd agree with you. It doesn't sound like they were negligent, so regardless of the legality, I don't think it would be ethical to hold them responsible.

[carolinamama]

I don't think the daycare would be liable for this type of accident. Agreed, if they wen't negligent, then it is just one of the accidents that comes with childhood. It could have happened anywhere. If daycares were responsible monetarily for every accident or injury, they would be charging 5x the amount.

[Lovingliv]

The daycare is responsible and should pay. It happened while she was there.....they should be picking up the bill.

[lalasmama]

How far away was the end of the slide to the window sill?

My first thought is that if you want to stay on good terms, and if there's medical insurance covering it anyway, I'd leave it alone.

However, when my mom did in-home daycare, we had a Step 2 Style climber (2 actually, now that I think about it!).... When the kids wanted to play on it, we dragged it to the middle of the room, just to attempt to avoid issues like this.

I do think I'd ask that they better cover their window sills to avoid similar incidents in the future. Toddlers and preschoolers aren't really known for their grace or ability to "catch" themselves when they lose balance!

[twowhat?]

I don't think they're liable though I have to wonder how close the end of the slide was to the windowsill. They at least need to move it farther back, you'd think...

I'm glad your DD is OK.

[AnnieW625]

If you like your daycare and you don't think this was their fault I would not sue your daycare for negligence. Accidents happen all the time.

[Uno-Mom]

My personal opinion is that I'd never sue unless I planned to sever ties with the provider AND I felt they were at fault.

I might look at our contract and if they were liable for accidents under their care, I would go to them to ask for payment. If their contract does make them liable and they refused to pay, I would lose confidence in them and want to remove my child anyway. But, this doesn't sound like that kind of situation. It sounds like an accident and I seriously doubt that the contract makes them liable.

[Cam&Clay]

If the slide were broken or the children were unsupervised, maybe, but this sounds like an accident. It could've happened anywhere.

[MMMommy]

I don't think the daycare is liable or at fault here, unless the slide was precariously too close to the window sill. Saying it is the daycare's fault is a stretch. If you want to maintain good relations with this daycare and keep your child there, I wouldn't pursue this matter. Unless the daycare was negligent, bumps and bruises go with the territory. Just because an injury occurs at the daycare doesn't automatically mean the daycare is liable or at fault.

[mctlaw]

Earlier this week my daugter was involved in an accident at daycare which required medical attention. She had a gash on her chin that luckily was able to be taken care of with liquid stitches but the bigger issue is that she sustained dental damage that will require a tooth to be extracted. My husband asked me tonight of we should think of contacting a family friend who is an attorney to have the daycare help with medical expenses we will accrue now and down the road related to this accident. I dint think the daycare is liable unless there was negligence which I don't think there was and we couldn't prove if there was. As don't you sign a release of liability when the kids start?

If there was no negligence there is no liability. Others have addressed the issue of getting into an adversarial relationship with your child's current caregiver.

As to those goofy releases parents are made to sign waiving claims in case of their children's injuries, these are often not worth the paper they are written on (though it varies by state). Generally, it is against public policy and therefore would not be upheld by a court, for a parent to waive liability on behalf of their child. One can waive liability for an injury to oneself, but not another, distinct person.

However, I do want to mention to you that businesses including daycares often have a no-fault, Med-pay type policy that often covers up to $5,000 or so in medical expenses. It would be totally ok and not overreaching to contact the appropriate admin of your daycare and inquire as to whether they have such a policy.


The daycare is responsible and should pay. It happened while she was there.....they should be picking up the bill.

No. Does not work this way. Just because I (or my child) walk into someone else's building does not make that person an insurer of my (or my child's) safety. Reasonable care is what is required.

[mikala]

As long as there wasn't a really obvious issue with the placement of the slide near the window I'd let it go. If the slide does look too close to the window and the equipment can be moved further away I'd suggest they do so.

Even with the best supervision in the world kids fall and kids get hurt. It isn't pleasant but it's life. My son sent a tooth through his lip while climbing on a playground structure at a park. I had my hands out spotting him and was watching him the entire time but simply couldn't catch him the right way in time to prevent injury. My friend's daughter broke her leg when it got trapped behind her while going down a little kiddy slide. Another friend's son had a trip to the ER after he tripped over and bit off part of his tongue.

If you do pursue this legally be prepared to find a new daycare for your child because I can't foresee it ending well.

[♥ms.pacman♥]

My personal opinion is that I'd never sue unless I planned to sever ties with the provider AND I felt they were at fault.

(snipped)

It sounds like an accident and I seriously doubt that the contract makes them liable.

:yeahthat:

Sounds like you really like the daycare, and you personally don't think they are at fault, so I wouldn't pursue this. Like PP said, even with the best supervision in the world, kids get in accidents and get hurt.

[dukie41181]

If there was no negligence there is no liability. Others have addressed the issue of getting into an adversarial relationship with your child's current caregiver.

As to those goofy releases parents are made to sign waiving claims in case of their children's injuries, these are often not worth the paper they are written on (though it varies by state). Generally, it is against public policy and therefore would not be upheld by a court, for a parent to waive liability on behalf of their child. One can waive liability for an injury to oneself, but not another, distinct person.

However, I do want to mention to you that businesses including daycares often have a no-fault, Med-pay type policy that often covers up to $5,000 or so in medical expenses. It would be totally ok and not overreaching to contact the appropriate admin of your daycare and inquire as to whether they have such a policy.



No. Does not work this way. Just because I (or my child) walk into someone else's building does not make that person an insurer of my (or my child's) safety. Reasonable care is what is required.

How would I know who the appropriate admin is for the med-pay? I think the out of pocket medical expenses are my husbands main concern. They aren't outlandish but $500 or so.

[dukie41181]

How far away was the end of the slide to the window sill?

My first thought is that if you want to stay on good terms, and if there's medical insurance covering it anyway, I'd leave it alone.

However, when my mom did in-home daycare, we had a Step 2 Style climber (2 actually, now that I think about it!).... When the kids wanted to play on it, we dragged it to the middle of the room, just to attempt to avoid issues like this.

I do think I'd ask that they better cover their window sills to avoid similar incidents in the future. Toddlers and preschoolers aren't really known for their grace or ability to "catch" themselves when they lose balance!

I am embarrassed to say I don't know how close the slide was to the window. I didn't walk back to the gym and see as I was rushing my daugter to the doctor. How do I go back and find out? Just ask? I don't want to look stupid.

[ECMom]

I wouldn't pursue this with the daycare since it was an accident. However, I would suggest to them that they move the slide (if possilbe) so this won't happen to another child. Also, if there was a trip to the ER/urgent care & a claim filed with your insurance company, then your insurance company may seek reimbursement. Not sure if it's the same with injury at a business, but I do know the insurance company will seek reimbursement from individuals with injuries occuring on their property. My son went to urgent care with a spilt lip from playing football. A couple weeks later we received a questionnaire from the insurance company asking how & where the injury occured, including the property owner/address. A friend's child went to the ER with a broken arm & they received a similar letter from their insurance company.

[Lovingliv]

If there was no negligence there is no liability. Others have addressed the issue of getting into an adversarial relationship with your child's current caregiver.

As to those goofy releases parents are made to sign waiving claims in case of their children's injuries, these are often not worth the paper they are written on (though it varies by state). Generally, it is against public policy and therefore would not be upheld by a court, for a parent to waive liability on behalf of their child. One can waive liability for an injury to oneself, but not another, distinct person.

However, I do want to mention to you that businesses including daycares often have a no-fault, Med-pay type policy that often covers up to $5,000 or so in medical expenses. It would be totally ok and not overreaching to contact the appropriate admin of your daycare and inquire as to whether they have such a policy.



No. Does not work this way. Just because I (or my child) walk into someone else's building does not make that person an insurer of my (or my child's) safety. Reasonable care is what is required.

Same situation happened to a very close friend....actually two friend's went through similar situations. One was in NH, one was in Ma. Both times the daycares picked up the bill. No question asked.

[MMMommy]

Same situation happened to a very close friend....actually two friend's went through similar situations. One was in NH, one was in Ma. Both times the daycares picked up the bill. No question asked.

Just because an injury occurs on the daycare premises doesn't automatically make the daycare provider liable. It depends on the individual circumstances, whether the daycare provider acted negligently, and in a case like this, factors like condition of the playground equipment, etc. If daycares were liable for any and all injuries that occur on their premises, no one would ever want to run or own one.

[Penny's Pappa]

If daycares were liable for any and all injuries that occur on their premises, no one would ever want to run or own one.

:yeahthat:

Kids are kids. They have accidents all the time. I sure as hell wouldn't open a daycare if I always had to worry about a kid tripping over their own feet and breaking their nose or something like that.

This just sounds like a random accident to me not any sort of negligence on the daycare's part. IANAL, but I don't see how this was the daycare's fault in any way and I wouldn't pursue anything from them for this.

[TwinFoxes]

Same situation happened to a very close friend....actually two friend's went through similar situations. One was in NH, one was in Ma. Both times the daycares picked up the bill. No question asked.

But that doesn't mean they were legally bound to. There has to be negligence, and then damages are awarded. Maybe the circumstances were such that the center felt they could be proven negligent. Who would do childcare if they could be sued for honest to goodness accidents?

OP, I think the day they receive papers could very well be your DD's last day at their daycare. So have a backup plan in place.

[HannaAddict]

As MCTLAW has said, the daycare isn't necessarily liable, it doesn't work as simplistically as court tv shows would have the general public believe. And even if they were, if they don't just agree to pay your out of pocket, you would need to hire an attorney (40% contingency is the going rate around here) and look at a year and a half minimum for your day in court and at least a year to see an arbitrator before court. Of course, you could try small claims court but for $500, it would take time and effort and not necessarily be successful. If you have medical insurance, I would just suck it up, accidents happen. If you feel comfortable talking to the daycare, you might approach them about paying your out of pocket, they might pay it, even if not legally responsible for it. I'm sorry this happened. Hope she is feeling better!

[dukie41181]

Wanting to be crystal clear here, my OP was not indicating this is something I am personally comfortable with. I in no way, shape or form want to impact our relationship with the daycare and know perusing anything would. I was merely throwing the question out to the gallery for thoughts as it had been mentioned and was something that had never even crossed my mind.

[mctlaw]

How would I know who the appropriate admin is for the med-pay? I think the out of pocket medical expenses are my husbands main concern. They aren't outlandish but $500 or so.

Dukie4118, the daycare should have a person in management/admin. who handles insurance and would know this or could easily find this out, I would start with the director or an office administrator to get out this information by inquiring if they have a no fault/med pay policy. Did they have you sign out an incident report? I am sure they filled one. Often, they will use an insurance company provided form and the insurance info will be indicated right there on it, though you will likely need to make a follow up call to determine what type of policies they have.

And I hope your daughter is feeling better too!

[malphy]

I think the school may or may not be able to help you as far as their insurance goes. I think it depends on your relationship with the administrator. Can you have a calm frank conversation about this with them? Not demand anything but ask if there is anything they can do.

With that said, accidents happen. My dd was standing next to me when she tripped and face-planted to the ground. Blood, dentist trip, dead tooth-the cost of being a parent.

I also work in daycare and can tell you accidents happen.every.day. My boss would be out of business if every parent who's child tripped over their own feet expected to be compensated monetarily.

It is one thing if there is negligence another thing entirely if the injury was as a result of the child's behavior.

We are extremely vigilant in my class of infant/toddlers and we have low child ratio and yet someone gets inured every day. They fall over their own feet, over toys on the floor, over children on the floor, they run into each other because they do not usually look where they are going, etc. Try as we might they do hurt themselves on occasion. We have prevented far more injuries from occuring but you just cannot prevent them all.

We cannot have them live in a bubble, we cannot wrap them in bubble wrap. We (schools and parents) have to do the best we can and let them learn from their mistakes.

Now my school works really well with parents and if it is possible for the school they would probably help financially. If it is a franchise school you are more likely to get money but will then be promptly asked to leave. If it is small or private it may not be possible for the school to assist you financially when it was due to your child just tripping over themself.

I hope I gave you some info you can chew on with your dh. I do not think it is unheard of to ask but it really depends on the situation and only you, dh and your school know that.

[crl]

My perspective is that I wouldn't want the money so much as I would want to understand how it happened and if it could have been prevented. It's entirely possible it was just an accident. But it sounds like it is also possible the slide is too close to the window. I'd look up guidelines for clear space at the bottom of a slide and then politely ask if you can see where the accident happened because you want to understand what happened. If the slide is too close to the window, I would politely point that out and ask if they could rearrange to prevent a repeat of the accident.

If the slide was too close to the window, you would be in a better position to ask the center to help cover your medical costs. Since you are very happy there, I wouldn't. I would consider the $500 an investment in not having to find another daycare to be happy at.

That's just how I would think about the situation.

Catherine

[dogmom]

I guess this is the way I would respond to your husbands question. (It sounds like a question, not he's all hot to sue.) Accidents happen, they could happen while out walking, or at daycare, or while another kid is running around your house. I think when you have children to the best of your ability you need to commit to provide for their needs, which includes their dental bills if there is an accident. Sure, no one wants to pay a thousand for dental bills (or whatever it is), but unless I was some struggling family that had trouble keeping food on the table, keeping my house warm in the winter and keeping my car running so I can get to work I would not ask the day care to pay for the bill unless it was something egregious that had already be brought up as a potential injury. I can just imagine being on the opposite end of this when some kid falls at my house and some parent decides that my home owner's insurance should pay for a dental bill they can afford. That's my opinion.

[dukie41181]

I guess this is the way I would respond to your husbands question. (It sounds like a question, not he's all hot to sue.) Accidents happen, they could happen while out walking, or at daycare, or while another kid is running around your house. I think when you have children to the best of your ability you need to commit to provide for their needs, which includes their dental bills if there is an accident. Sure, no one wants to pay a thousand for dental bills (or whatever it is), but unless I was some struggling family that had trouble keeping food on the table, keeping my house warm in the winter and keeping my car running so I can get to work I would not ask the day care to pay for the bill unless it was something egregious that had already be brought up as a potential injury. I can just imagine being on the opposite end of this when some kid falls at my house and some parent decides that my home owner's insurance should pay for a dental bill they can afford. That's my opinion.

You are right, we are certainly not the "hot to sue" type! I think he's hearing it from other people and then began questioning.

[wimama]

I think the school may or may not be able to help you as far as their insurance goes. I think it depends on your relationship with the administrator. Can you have a calm frank conversation about this with them? Not demand anything but ask if there is anything they can do.

With that said, accidents happen. My dd was standing next to me when she tripped and face-planted to the ground. Blood, dentist trip, dead tooth-the cost of being a parent.

I also work in daycare and can tell you accidents happen.every.day. My boss would be out of business if every parent who's child tripped over their own feet expected to be compensated monetarily.

It is one thing if there is negligence another thing entirely if the injury was as a result of the child's behavior.

We are extremely vigilant in my class of infant/toddlers and we have low child ratio and yet someone gets inured every day. They fall over their own feet, over toys on the floor, over children on the floor, they run into each other because they do not usually look where they are going, etc. Try as we might they do hurt themselves on occasion. We have prevented far more injuries from occuring but you just cannot prevent them all.

We cannot have them live in a bubble, we cannot wrap them in bubble wrap. We (schools and parents) have to do the best we can and let them learn from their mistakes.

Now my school works really well with parents and if it is possible for the school they would probably help financially. If it is a franchise school you are more likely to get money but will then be promptly asked to leave. If it is small or private it may not be possible for the school to assist you financially when it was due to your child just tripping over themself.

I hope I gave you some info you can chew on with your dh. I do not think it is unheard of to ask but it really depends on the situation and only you, dh and your school know that.

My DS has been in daycare since he was 7 weeks old. At around that age, he fell 3 times on his face and nearly completely knocked out his front teeth requiring a trip to the pediatric dentist. The third time he finally learned the lesson on needing to catch himself before his face hit the ground. He also ran full speed into a outside play structure support pole. He also ran full speed into a friend on more than one occasion. Kids at that age are not very careful. Those accidents are just as likely to happen at home under a parents watch. But, add in the distraction of several friends running around with your child, accidents just happen. My DS broke his collar bone playing in a play water fountain under my watch. Another bigger kid ran into him. That is just childhood.

My only concern with your situation would be if the positioning of the slide to the window. If it is too close I would suggest they move it to prevent future injury. Good daycares are hard to find. I wouldn't risk my relationship with daycare over this matter.

[malphy]

I agree w/pp's that the red flag is the distance of the slide from the window. I would check on that for sure. I will also say that the distance may be fine. Dd may have take a few steps before she tripped or after she tripped or even had another child in her way. It is truly amazing the knack kids have for injuring themselves.

Sorry u r going thru this.

[mom2akm]

OP, I just want to wish your DD a speedy recovery.:hug5: