Key Legal Questions Every Parent Should Ask After an Accident at a Private Daycare Facility

If your child is injured at a daycare facility, the last thing you want to do is panic. You might feel overwhelmed with emotions but you shouldn’t lose control of your actions, as now you need to know the right steps to take immediately after the injury to secure your child’s legal rights:

Make sure everything about the incident is reported

Make sure that your child gets medical attention

Get photographs of the injury

Seek legal counsel

Notify the daycare in writing

What does the incident report say?

Any private daycare center that is licensed by the state is required to deliver you an incident report on your child in the event that he or she is injured while on the facility’s property. This incident report is the daycare’s official account of what happened. As such, you should always get a detailed summary of this report and review it.

It’s important to read this report carefully. When analyzing the incident report for inconsistencies or omissions, ask yourself questions such as the following:

What does the report say about the time when your child was injured? When was the report completed? Who signed the report? In what capacity? Does the description of your child’s injury correspond to what the report says about the nature and cause of the injury? A head injury that doesn’t correspond to what could happen in a short fall suggests that either the events described in the report don’t reflect the cause of the child’s injury or that the person who prepared it didn’t prepare it accurately. Ask yourself similar questions about the other details included in the report. When reviewing the incident report, ask yourself what the report doesn’t say.

For instance, an incident report could show deficiencies such as the absence of witness signatures, an inadequate description of the harmful conditions, and absence of information about what was done to resolve the injury-causing situation. Each of these deficiencies might indicate either that the facility wasn’t competent enough to properly document necessary information or that someone intentionally omitted certain information from the report.

The liability release form you signed at enrollment

Private daycare facilities usually make parents sign a liability release form as a condition of enrollment. Most parents sign liability release forms without giving it a second thought since the forms are usually a part of a stack of enrollment-related documents; it’s easy to assume that the form releases the facility from any responsibility if something happens to the enrolled child.

However, that’s usually not the case.

Liability release forms are a means designed to protect a business from being sued when an injury occurs due to an unavoidable or unpredictable accident, such as a child slipping on a smooth surface or tripping over one’s shoelaces. However, those forms can’t protect a private daycare facility from being sued for gross negligence, deliberate disregard for the safety of the enrolled children, or other intentional acts. They also don’t protect the facility from a lawsuit related to a specific category of injuries unless they explicitly state that in the document. This is usually a matter of interpretation, which depends on the document’s language and is also subject to the jurisdiction under which the case is heard. The liability release forms signed by you at the daycare enrollment aren’t foolproof, especially if the injury is serious. If it’s serious enough, the court might decide that it isn’t that simple.

Staff-to-child ratio as evidence of negligent supervision

The state determines how many children a daycare employee can be responsible for at any given time. The specified number represents a ratio that the state has found to be safe since it was determined that a caregiver couldn’t keep adequate supervision over a larger group of children than the specified ratio indicated. Therefore, when a daycare facility has more children than staff on duty, as may happen when a child is injured, it doesn’t just fail to follow the state regulations; it supervises the enrolled children negligently. This type of supervision failure can be a solid ground for a lawsuit if it can be demonstrated that the facility’s negligence was in some way responsible for the child’s injury.

In case of a negligent supervision claim, it isn’t necessary to prove that the injury would’ve been prevented if there were more caregivers present. It is enough to prove that if there were sufficient caregivers present, the injury wouldn’t have happened. To do that, you’ll need the daycare to provide information such as the number of staff present at the time of the injury, the number of children present and enrolled, and whether any of the staff members were on a break, sick, or absent for other reasons, making the facility unable to provide the supervision that’s supposed to be there according to the staff-to-child ratio.

Preserving evidence before it’s destroyed or disappears

A daycare facility has a limited amount of time to retain video evidence, after which it is overwritten. The facility might overwrite the video evidence of the incident with newer video footage, so make sure that you preserve it before it is gone for good. You can do that by sending a demand for video evidence preservation to the facility by hand or certified mail as soon as possible. In this demand, you should state that you want all the video evidence from the time of the incident and 30 minutes before it to be preserved for your future reference. This way, if the facility destroys or tries to conceal the video evidence of the incident after you send this demand, it would be obvious that this was intentional.

In addition to video evidence, make sure to photograph the evidence of the injury-causing conditions whenever you can, so that you can use it if necessary. Physical conditions that caused the injury are often repaired within a few hours, so the photographic evidence is crucial if it can’t be obtained otherwise. If the conditions that caused the injury are still present, you don’t need to worry about preserving evidence, as the conditions themselves are proof of the incident.

How to navigate the state licensing investigation

Parents can ask the local state licensing department to investigate the daycare facility in the case of a suspected safety violation. This investigation process isn’t a prerequisite for filing a lawsuit, but it can be beneficial to go through it because it helps establish certain facts. A state licensing department is an independent regulatory agency with the authority to investigate the facility, not the facility itself, the facility’s insurance company, or an independent third party whose interests aren’t closely tied to the case. A licensing investigation can lead to the discovery of vital information relevant to your case. Any documented findings of the investigation can become evidence, as well as the mandatory corrective action plan directed to the facility by the investigators. All of that can help your case substantially by helping you establish some of the crucial elements of the lawsuit and demonstrating that the daycare facility is liable.

Licensing records are typically public documents, so you can request them to see if the facility has a history of similar safety violations. This is helpful because it shows that the facility should’ve been aware of these issues and failed to rectify them. This can also help demonstrate that the injuries to your child weren’t an isolated incident but rather a continuation of the previously established pattern of behavior on the facility’s part. If the licensing records don’t show similar safety violations, the absence of evidence is also valuable because it demonstrates that there aren’t any grounds for a lawsuit against the facility based on the violation of state regulations.

When navigating the intricacies of local regulations while dealing with your child’s injury, a daycare injury lawyer in Chicago can help you protect your Illinois family’s legal rights.

Documenting your conversations with the daycare

During the period right after the injury, daycare administrators and their staff might reveal details that could become helpful evidence. When communicating with them, you should always keep everything in writing, and in case of a phone call, you should document everything that was said right after the call is over. You should keep all the text messages and emails, and most importantly, never delete anything. If you’ve already had phone conversations but didn’t document them, you should write down everything you remember about them now and sign the documents to prove that the information stated in them is true.

When communicating with the daycare after your child’s injury, it’s best to avoid steering the conversation in one direction or another. This includes accusations, apologies, and justification, as they can all be damaging if you’re not careful. You can request specific information, and asking questions is appropriate, but any other type of statement should be reserved for your attorney.

The extent of your claim

Many parents tend to underestimate the extent of their claim when a child is injured. After all, the ER costs are one thing, but what about all the other expenses that will follow?

The child’s injury can often affect the whole family. Following the ER visit, you and your spouse may be required to take time off of work for the child’s physical therapy, multiple doctor’s appointments, or to assist the child in any other way. Sometimes it’s hard to return to normal life after the child’s injury, especially when the pediatrician has determined that the psychological trauma will last for an extended period of time.

Physical therapy, specialized procedures, and even additional surgeries aren’t cheap, nor are the transportation and child care expenses that may come along with them. In addition, some injuries can leave lingering effects, and some children may even require medical-legal assessments for the rest of their lives.

The clock is ticking

Statutes of limitations set deadlines for initiating legal proceedings, which means that you always have a limited amount of time to bring your claim to court even if you do have sufficient grounds for a lawsuit.

This deadline can vary depending on the jurisdiction that applies. Although a minor’s statute of limitations can sometimes be extended, it’s never advisable to prolong a child’s injury case for as long as you can.

It takes time to investigate allegations against the facility, which means you can’t leave everything for the last minute. The longer you wait to file a lawsuit and move forward with your claim, the harder it can be to collect evidence because the evidence can disappear, witnesses can forget, and the daycare can alter existing conditions and modify documentation. This isn’t to say that the passage of time is irrelevant to the filing of a lawsuit, but it should be noted that the issue isn’t whether your child was injured but rather whether the facility failed in its legal obligations to the child in a way that caused the injury to occur.

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