The U.S. Census Bureau reports that as American families increasingly rely on dual incomes, childcare outside the home is the norm. In a typical week, 61 percent of children under 5 were in some type of regular child care arrangement, whether with a relative or in a daycare center.
We trust these individuals and facilities to provide the very best care for our children. At the very least, we expect them to keep our children safe. In fact, by taking on a supervisory role, they have a legal duty to use reasonable care in shielding children from foreseeable harm.
Unfortunately, this is not always, and Boston day care injuries are far too common.
This is not to say that all accidents are the result of someone’s negligence, as children are after all children, and some accidents cannot be prevented. However, children cannot, by virtue of their age and inexperience, be expected to foresee all possible dangers. It is negligence if a foreseeable danger existed and the daycare worker or caregiver failed to take action to mitigate that risk. And of course, child abuse at a daycare center is not only criminal, it is a legal breach of duty of care, and may be actionable in civil court. As our Boston daycare injury attorneys can explain, if your child is harmed due the negligent or intentional acts of daycare personnel, you may have a valid claim.
Daycare Injury Claims in Boston
There various types of claims that can be brought in a Boston personal injury claim involving injuries that occurred at a daycare center. As stated in the Massachusetts Jury Instructions Manual that serves as a bench book for judges, the four basic elements are duty, breach, causation, and damages. Causation can be further divided into actual and proximate causation. Most cases involve injuries that occur to plaintiff’s child at a daycare center will involve negligence-based claims so these elements must be established.
There are however, various theories of negligence that may apply to Boston daycare injury claims and they are as follows:
- Failure to adequately supervise staff
- Negligent retention of an employee
- Negligent hire of an of employee
- Ordinary negligence
- Gross negligence
These theories may be plead independently or more than one may be applicable if the facts so support such a claim as if often the case. Ordinary negligence is often included as a catch-all in the event the other theories cannot be established by a preponderance of the evidence, which is the standard of proof required in civil personal injury lawsuits in Massachusetts. This means it must be established defendant was more likely than not to have engaged in negligence conduct.
Moreover, there will typically be a claim of ordinary negligence filed against the daycare worker who physically engaged in the negligent conduct, and respondeat superior or vicarious liability claims filed against the daycare center owner. This is based upon a law that makes employers liable for the negligent conduct of their employees so long as the employees were acting in furtherance of their employer’s interests. If they were not, like on a lunch break at the time, there might be difficulty in establishing negligence on the employer via this thoery.
The other claims such as negligent retention of an employee, negligent supervision of an employee, and negligent hire of an employee, are not however vicarious liability claims as they are direct claims against the employer. The importance of filing a claim against the employer as opposed to just the negligent employee is that the employer likely has a lot more assets and insurance to pay for damages in the event a settlement is reached, or the jury awards damages to the plaintiff following a Boston personal injury trial.
Negligent Hire, Retention, and Supervision of an Employee Claims
If an employer hires an employee to work at a daycare center, the employer must submit a copy of the employee’s fingerprints and background information for state and federal background checks. Fingerprints are so important because many defendants use fake names or aliases when they are arrested and some cases are entered into the system with the fake name. If someone runs a person’s Board of Probation Record or “Bop” as it is often called by lawyer and judges, without finger prints, the true name may not reveal the offenses committed under the name of the alias. If an employer does not run the prospective employee’s record, or has reason to know that the employee is not fit to work at a daycare center, and hires that person anyway, this could be used to proved the tort of negligent supervision.
If an employer fails to adequately supervise an employee, that is also tortious conduct. If an employee seems okay at first, and then demonstrates conduct that should lead to concern and the employers does not take appropriate action in light of this new revelation, this would be an example of negligent retention of an employee.
In a recent article from ABC News, a daycare provider has been charged with criminal offenses after a child suffered a broken leg at a daycare center. The child’s parents were not told anything about the injury, but they immediately heard their son crying. The mother realized the child was in serious pain and went to a pediatric emergency room. She soon learned her son suffered a spiral fracture to his femur, which is the largest bone in the child’s leg.
Authorities conducted an investigation that lasted for months and eventually charged the defendant with a felony. Even if the original accident was not the daycare provider’s fault, not getting medical treatment for hours, if true, would constitute child neglect and endangerment. Even though the defendant has been arrested and charged with felony conduct, these are only allegations and defendant is presumed innocent unless and until she is found guilty in a court of law beyond a reasonable doubt by a judge or jury as that is the required standard of proof in a criminal case. This is much higher than the standard of proof required in a civil personal injury lawsuit such as one involving an injury at a daycare center in Boston.
While this was an example of a serious daycare injury, there are many less serious accidents that can still result in significant physical or mental harm to children. If your child has been injured while at daycare, you should immediately report the injury to the appropriate authorities if the situation requires such action.
If you have suffered personal injury in Massachusetts, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment — 1-888-367-2900.
Daycare Provider charged after child suffers broken leg, October 27, 2017, By Forrest Saunders, ABC News
More Blog Entries:
Pontoon Boat Operator Charged With Criminal Negligence in Boy’s Death, Feb. 16, 2017, Boston Sport Injury Lawyer Blog