The last thing any parent wants is to receive a call that their child has been hurt while at daycare. However, understanding the foundation of negligence with children is of the utmost importance to determine whether or not the injuries your child sustained were their own fault or do to improper negligent supervision. Parents naturally want to put their trust into a daycare, but you can never predict everything. Distinguishing between negligence and a genuine accident will allow you to determine if certain legal steps should be taken to protect your child’s best interests after the injury.
Disclaimer: This is not legal advice. Please consult with a licensed attorney if you have legal questions.
What Is Negligent Supervision?
First and foremost, for those who have never heard the term, defining negligent supervision starts with outlining what exactly the basis of negligence is. There are four main aspects to negligence:
- Duty of Care: A duty of care is one obligation a party has to another to act in a reasonable manner to prevent injury to the other party.
- Breach of Duty of Care: A breach of a duty of care is when one party has acted in an unreasonable manner, specifically in such a way that another party would not have done the same.
- Causation: The third aspect of negligence is causation, meaning that the breach of duty of care needs to lead to an accident that caused injuries to another party.
- Damages: Finally, the existence of damages, such as pain and suffering, medical expenses, lost wages, and more, are the final stepping stones to proving negligence.
In the sense of child care, caregivers have an inherent duty of care to protect the children they are overseeing. An example of negligence could be a breach of duty of care as simple as leaving a child gate unlocked, thereby allowing the child to get out, only for a dog on the street to attack them, causing injuries.
Common Examples of Negligent Supervision
To drive this point further home, there are a number of common examples of negligent supervision that you can use to determine whether or not a staff member looking after your children acted erroneously:
- Inadequate Staff Supervision: If there are too few caregivers for the number of children or if caregivers are distracted by phones, conversations, or personal tasks, it can qualify as negligence.
- Failure to Address Hazards: Leaving cleaning chemicals or choking hazards accessible or failing to fix broken playground equipment are all examples of this type.
- Ignoring Child Behavior Issues: Not stopping rough play that leads to injury or allowing bullying or physical aggression without intervention can be grounds for negligence.
- Unsupervised Access to Dangerous Areas: Allowing open doors or gates leading to streets, pools, or staircases can be dangerous, as well as leaving children alone in unsafe play areas.
- Delayed Response to Emergencies: Staff not noticing when a child is injured or in distress and failing to provide first aid or call for medical help when necessary can be grounds for a case.
Naturally, negligence is a very case-by-case term. You will need to work with an accredited personal injury lawyer who can walk you through the specific details to determine whether or not a caregiver acted with negligence in regards to your child.
What Constitutes a True Accident?
On the other side of things, children are chaotic which means that unavoidable accidents can certainly occur. Even with complete safety measures in place, it’s possible that your child somehow got themselves hurt due to their own actions, rather than negligence on behalf of the caregiver. Three common cases of true accidents in caregiver scenarios include:
- Minor Play Injuries: A child falling while learning to walk or a scraped knee from playing outside under supervision, as examples, are just small normal injuries that may not be avoidable.
- Unexpected Medical Events: A sudden allergic reaction despite a known allergy being managed or a child developing a fever, even with proper hygiene protocols, are all unexpected and therefore unforeseeable events.
- Safe Playground Falls: A child falling from a jungle gym within an approved height range or playground equipment meeting safety standards, but still resulting in a minor injury, is just an accident.
Key Factors That Distinguish Negligence from an Accident
Naturally, distinguishing between negligence and a true accident is the main roadblock in determining whether or not you might have a personal injury case on your hands. First, you need to look at whether or not there was adequate supervision. Evaluate the number of caretakers present and determine whether that number matches the number of children. You should also request evidence that the caregivers were actively watching and engaging with the children.
On top of this, consider the foreseeability of the danger. As alluded to above, some things are just unavoidable, whereas other hazards or risks can be anticipated and prevented. A child running near a wet floor, for example, is obviously at risk of slipping, which is something a caregiver should see. Additionally, consider the caregiver’s facility itself and whether or not it meets industry safety regulations. This can also open the door to prior complaints or incidents that may have been reported at the facility, which can set a foundation for your case.
What Parents Can Do to Protect Their Children
All parents want to provide and protect for their children, but this can feel impossible when you hand them over to a caregiver. Therefore, there are a few things you can do to ensure that your child is in the best hands possible:
- Research and choose a safe daycare by checking licensing and accreditation, in addition to asking questions regarding caregiver-to-child ratios and staff training
- Inquire as to the company policies about how conflict between children is handled
- Ask about the protocol for injuries and emergencies
- Figure out what staff turnover looks like, or if children often appear to be running around unsupervised
Take action to protect your child when you’re not around
There are key differences between negligence and accidents, which typically revolve around the foreseeability and preventability of an event. By working with an accredited personal injury lawyer through a consultation, you can figure out whether or not the incident involving your child leaned more towards one or the other. Regardless, stay proactive about the safety of your child and always vet any daycare you are considering sending your child to so that they avoid injury.