Daycare Accident

Does it Matter if I Have Signed a Liability Waiver?

Even if you have signed a waiver of liability, that does not mean that your child’s daycare facility cannot be held accountable for a daycare injury that occurs on their premises.

An Indemnity clause — the section of a liability waiver releasing you of your right to sue a daycare provider for any injuries that occur to your child under the provider’s care — does not bar you from taking legal action to receive compensation for a daycare injury.

Under almost all circumstances, courts will find that liability waivers hold no validity because they essentially grant the daycare an “out” to act negligently without any threat of legal repercussion- which amounts to legal immunity.

In general, daycare providers are aware that liability waivers are obsolete in the eyes of the court.

They simply use them as a deterrent from parents knowing that they can file a suit in the case that a daycare injury does occur.

How Do I Prove that the Daycare is at Fault?

The first step to taking legal action against your child’s daycare provider is showing that the provider is liable for the injuries that your child sustained.

You and your daycare injury lawyer must prove the following:

• Duty:  The daycare provider violated a legal or understood obligation that they had to you and your child.
• Causation:  This breach resulted in the daycare injury to occur. Your child sustained injuries in a daycare accident. No outlying actor was to blame.
• Foreseeable:  The daycare injury could have been foreseen by the provider. It was not an anomaly.
• Proof:  There must be evidence of how the daycare injury occurred and supportive evidence to show that the daycare provider was at fault for any injuries the child sustained from the daycare accident.

What is the "Duty of Care"?

The duty of care, or duty as explained in the previous section, are the legal or understood expectations that the childcare provider must meet while taking care of a child.

The courts use a “prudent daycare center” principle to help determine the duty of care.

The “prudent daycare center” principle brings into question:

“What would a prudent daycare provider do in the same situation?”

If the court determines that another provider would have done more to ensure the safety of the child, then they would likely rule that the daycare provider acted negligently.

Furthermore, the court may determine that even though the child was under the supervision of the daycare center, a third-party actor was liable and the accident did not occur under the duty of care.

Who Sets the Laws and Regulations for Daycare Facilities?

In Illinois, the Department of Children & Family Services regulates all childcare.

In Missouri, the duty falls upon the Department of Social Services.

But state regulations in both states require that daycares are frequently inspected by state agencies who write reports and citations.

These reports are easily accessible and can be beneficial to you.

Your daycare injury lawyer can access these reports to determine whether similar incidents have happened at the daycare facility in the past.

If there have been previous incidents, this will likely strengthen your argument against the daycare facility.

All states have a government agency that is tasked with overseeing daycare providers.

Your daycare injury lawyer will be able to help determine which agency provides oversite in your state.

What is a Prima Facie Claim?

If the state inspector determines that a daycare provider is not meeting the expectations set by state law or requirements, the inspector will issue a citation to the daycare.

In the case that your child was injured in some manner related to a previous citation then you can make a Prima Facie claim.

A prima facie claim surmises that negligence occurred based on previous negligence.

Though it does not guarantee a ruling in your favor, it can greatly strengthen your case, especially if you show that the violation was not properly addressed.

You can easily access daycare reports from the state to check for citations that the daycare provider may have been issued in the past.

How Do I Build Case Against the Daycare?

A daycare accident lawsuit is handled like any other personal injury lawsuit, so you should familiarize yourself with the step in a civil lawsuit.

As soon as the incident occurs, it is very important that you begin to gather evidence.

Collect copies of any paperwork that you had previously filled out with the provider.

Request security footage if it is available.

Keep an organized folder of all medical records involved with the daycare injury.

Photographs can be the most crucial type of evidence in daycare cases.

Keep digital copies of all the photos that you take.

Make sure to label and date each photo, preferably digitally.

The following are important photographs you will want to collect:

• Photographs of the scene of the accident as soon as it occurs.
• Follow-up photographs of the scene afterward.
• Photographs of any visible injuries to your child.
• Follow-up photographs of your child’s healing process.

For more information on gathering evidence, follow our evidence guideline.

Besides evidence, you will also need to calculate the total damages that you believe the daycare provider is liable for.

Depending on the situation, you may choose to demand both compensatory and punitive damages in your daycare accident lawsuit.

After calculating your damages, you will be able to determine the amount of compensation you expect to receive.

For more information on damages, follow our damages guidelines.

Do not hesitate to contact a daycare injury lawyer and begin the process of filing your lawsuit.

Your state’s statute of limitations limits the amount of time you have to file a lawsuit after the injury occurred.

So as soon as you are ready, hire a personal injury attorney to start filing your daycare accident lawsuit.

How Do I Choose the Right Daycare Injury Lawyer?

The process of taking legal action against a daycare provider can be a long and difficult one.

Hiring a daycare injury lawyer can greatly increase the likelihood of success for your daycare accident lawsuit.

In the extremely unfortunate event that the daycare accident resulted in a child’s death, you should talk to a daycare injury attorney that is also an experienced wrongful death lawyer.

The daycare provider will make it difficult for you to gather evidence and documents.

With daycare laws and regulations differing state-to-state, it is also difficult to fully grasp the factors that play into the incident that occurred.

A daycare injury lawyer can use their knowledge of the law to circumnavigate these obstacles and formulate the strongest case possible against the daycare provider.

Finally, the cost of going to trial often outweighs the payout.

A trial is a last-case scenario and should be avoided as much as possible.

The best-case scenario is arbitrating the dispute out of court with the daycare’s insurance adjuster and legal advisor.

These arbitrations can be complex and an unaware parent may be misled to believe that their compensation is worth much less than its true value.

Your attorney will make sure that you receive the full amount of compensation that you deserve.

Because our firm works on a contingency fee basis, we only get paid once our clients have been compensated.

Therefore, we are dedicated to making sure that our clients receive the highest level of compensation for the injuries they or their loved ones have suffered.

It is important that you do not feel dissuaded from taking legal action.

The daycare provider should be held responsible for their negligence.

Your actions may be the only thing protecting other children from suffering from the same injuries in the future.

Contact TorHoerman Law today for a free no-obligation daycare accident lawsuit case consultation.