The Blog

Discovery, Depositions, and Trial Considerations in Daycare Cases

As in most personal injury cases, the Georgia Civil Practice Act and the Rules of Evidence govern daycare negligence cases. There are, however, a number of special considerations for these types of cases.

  1. Confidentiality

Judges and their staff attorneys appreciate being informed of the sensitive nature of discovery before an actual discovery dispute arises. The most egregious cases, such as those involving sexual abuse and molestation, may require the entry of a protective order.[i] A protective order may offer some peace of mind for parents deciding whether to move forward with a lawsuit. While some information—such as communication between a psychologist and a patient[ii]—is never discoverable, a protective order can further ensure that a permanent public record of the intimate factual allegations will not haunt a child. Another occasionally overlooked step to ensure privacy in these types of cases is simply referring to a child by his or her initials.

If there is a companion criminal case, the prosecutor’s investigative file may contain critical details about the incident. A pending investigation is not subject to an open records request.[iii] Similarly, records from the Department of Family and Children Services are usually confidential and exempt from disclosure.[iv] For pending investigations, the parties may be able to serve a subpoena duces tecum for these documents without having to wait for a final disposition of the criminal case. The government and the parties usually recognize that information about a child victim needs to limited to the respective cases. If there is an agreement, they can enter a stipulation in the civil case. Provisions in the stipulation oftentimes mirror language in a protective order, like agreeing not to release documents to the media or hold a press conference.

  1. Child Witnesses

The United States Supreme Court wrestled with issues surrounding a child’s competency to testify as far back as 1895.[v] Georgia follows the general presumption that children who understand the nature of an oath are considered competent witnesses.[vi] An actual oath is not needed in Georgia.[vii] Assuming that a child is competent to testify, there are practical ways to ensure credible testimony in a relaxed environment. A deposition, for example, can take place in a ‘safe location,’ such as an interview room at a clinic, as opposed to a sterile office environment. Depositions are not endurance contests, especially with children, so taking breaks for a snack will help to alleviate stress during the deposition.

Along with these considerations, the questions themselves during a deposition or a trial are important for addressing memory issues. A useful strategy starts with exploring basic topic about the child’s home, school, and family. These questions lay the foundation for a compelling testimony. Questions then can transition into more specific aspects about the daycare facility. For example, typical questions include the names of teachers and friends, which can be easily compared with the true facts. Eventually, the questions will flow into the incident itself, like “Did you see Ms. Smith in the room when it happened?” or “Were the big and little kids all playing together?” Courts may allow a more conversational and relaxed approach in contrast to an adult deposition.

  1. Parents’ Participation

Since a parent or natural guardian brings daycare negligence claims on behalf of their child, they have a right to attend the deposition.[viii] An attorney as a counselor needs to weigh the dynamics in the individual case. In some situations, the presence of a parent helps a child feel comfortable and safe during a deposition. In other situations, a child may feel compelled by the parent to give the “right” answer to avoid getting into trouble. Additionally, a parent may feel offended by certain questions or topics, which will unnecessarily interject even more emotion into an already emotional case, potentially driving a wedge into meaningful future settlement discussions.

A concerted effort to move a case expeditiously to trial takes on particular importance in a daycare negligence case given the emotional implications coupled with the capabilities of young witnesses.

  1. Current and Former Employees of the Daycare

An important category of witnesses is the current and former employees. They are likely to possess crucial knowledge about the common practices and procedures at the facility. A successful theme for the cross-examination of daycare employees can be rooted in a statement that everyone must agree with, for example: The safety of the child is the most important duty for a facility. .

An employee will agree with this statement, of course. Along with general safety standards, DECAL’s regulations are meant to protect a child from harm. The failure to follow these standards needlessly exposes children to harm. Former employees can bolster this theme by offering testimony about a pattern of substandard care by the facility. In the end, the employees’ testimony may reveal that children and families in the community at-large face mounting danger by virtue of the facility’s mistakes and omissions.

[i] O.C.G.A. § 9-11-26(c).

[ii] O.C.G.A. § 24-5-501(a)(5)-(8).

[iii] O.C.G.A. § 50-18-72(a)(4).

[iv] O.C.G.A. § 49-5-40(b).

[v] See Wheeler v. U.S., 159 U.S. 523, 524 (1895)(determining a child was competent to testify when he acknowledged that if he told a lie, then the ‘bad man’ was going to get him, and furthermore, if he told a lie to the court, then he would go to jail).

[vi] O.C.G.A. § 24-6-601 et seq.

[vii] See, e.g., Smallwood v. State, 165 Ga. App. 473, 473 (1983) (holding that a four-year-old child’s statement that “Jesus don’t like it [if] you don’t tell the truth” was sufficient to establish competency).

[viii] O.C.G.A. § 24-6-615.

Reflections on the 20th Anniversary of the Atlanta Olympics

July 19th will mark the 20th anniversary of the Atlanta Olympic games. An attorney, Mr. William “Billy” Payne, championed the effort to bring the games to Georgia. Last month, Mr. Payne graciously took the time to share with us his memories from the Olympics. The lessons underscoring them serve as fine examples for attorneys throughout our state.

 

Legal Background

Mr. Payne earned his undergraduate degree from the University of Georgia in 1969. As the son of a No. 1 NFL draft pick, Mr. Payne also played for the football team. His football skills led to a post-graduate scholarship to the law school. Mr. Payne graduated from law school in 1973 and entered into private with a firm in Atlanta that represented MARTA. Mr. Payne then transitioned to a larger law firm. After spending approximately five years with that firm, Mr. Payne opened a practice with six other lawyers. Mr. Payne, like many other attorneys starting a practice, remembers the humble beginnings, such as running titles at the various courthouses throughout Georgia. Mr. Payne later built the firm into a successful commercial real estate practice with large national clients.

 

A Dare to Dream

After several years of practice, Mr. Payne wanted to do more good than to simply earn a living for his family. Mr. Payne was inspired by his faith. When he was returning home from a dedication of a new church at his parish on Sunday, February 8, 1987, Mr. Payne recalled all of the wonderful smiles and began thinking about his other dreams. Mr. Payne happened to pencil down bringing the Olympics to Atlanta early the following morning. He notably gets up every morning at 5:30 to begin the workday. Mr. Payne’s dream certainly seemed improbable, if not impossible, ever to come to fruition at the time. Despite the myriad of obvious challenges, Mr. Payne dared to dream, and dreams do come true.

 

Importance of Friends

After Mr. Payne shared his dream with his wife, who is without question his best friend, she told him to contact his friends about actually pursuing an Olympic bid. Mr. Payne began reaching out to a number of his colleagues practicing at King & Spalding among other firms. His first telephone call went to his most conservative friend. At first, Mr. Payne recalls a profound silence when he broached his idea, but then his friend responded, “That’s a great idea. How much money can I give?” Mr. Payne’s wife, unbeknownst to him, listed to the conversation to ensure that he would accurately recount it later to her. Mr. Payne’s friends all supported him. In sum, Mr. Payne knew that the collective efforts of friends were immensely more valuable than any single individual effort.

 

Overcoming Challenges

Since the 1996 Olympics marked the centennial anniversary of the games, Athens, Greece initially appeared to be the most compelling location for them. Mr. Payne recounted that the international community had a very limited knowledge of Atlanta, Georgia beyond the Civil War and the struggle for civil rights. In fact, one person even asked Mr. Payne whether gambling was permitted near the games because that person confused Atlanta with Atlantic City in New Jersey. Mr. Payne, nevertheless, continued to persevere with his quest. He stressed the community spirit, as well as volunteerism in Atlanta with the Olympic committee. These common values made the difference because Atlanta was officially announced as the site for the games on September 18, 1990.

 

Best Memory of the Games

While Mr. Payne holds many fond memories of the Olympic games, his finest memory involves Mr. Mohammad Ali lighting the Olympic flame. Mr. Ali’s role was kept as a secret until the very last moment. To this end, Mr. Payne remembers standing in tunnel in the stadium, which was already full of the athletes, and telling Ms. Janet Evans, who is widely considered the best female distance swimmer, “Now give the torch to Mohammed Ali.” Her knees buckled at the news. Mr. Payne recalls being overcome with profound emotion at the historical significance of the lighting of the Olympic flame by Mr. Ali. Simply put, it was the greatest single moment of the games.

 

At the conclusion of our conversation with Mr. Payne, he reminded us that the story of the Olympic games ended where it began. “[A]chieving the improbable and impossible is beyond the talent of any one person, and accordingly, we as individuals must turn to friends.” The bonds of trust from friendships brought the Olympics to Atlanta. Most importantly, these values are the central component to leading a fulfilling life.

What types of lawsuits can I bring against a daycare facility?

People often wonder about the types of cases that can be brought against a daycare facility. It’s a complicated question. While the particular facts of the incident will dictate the cause(s) of action, this article will focus on five of the more common types of claims against the daycare facility:

  1. Negligence

As with any personal injury case, standard for basic negligence in a daycare negligence case is the “degree of care which is exercised by ordinary prudent persons under the same of similar circumstances.”[i] An example of basic negligence is an employee simply lifting a child off a changing table by one arm, leading to a dislocated elbow. Other examples include staff giving the wrong prescription medication to children or feeding a child a lunch with a known allergen, such as peanut butter. [ii]

  1. Negligence per se

These claims may be ripe against a daycare facility based on the findings from DECAL’s investigation as long as there is a casual connection between the harm and the type of harm the statue was designed to protect.[iii] A common example is improper classroom ratios. DECAL regulations require a 1:10 staff to child ratio for two year old children.[iv] When these ratios are exceeded by the facility, employees are not always able to meet the needs of individual children. This may result in life-threatening scenarios, such as a child being left to asphyxiate in a crib.

  1. Res Ipsa Loquitur Negligence

This doctrine allows for an inference of negligence when an injury ordinarily does not occur in the absence of negligence.[v] For example, a doctor determined a broken femur could not have resulted simply from a child running and falling in the classroom.[vi] Instead, the doctor opined that the injury could only have resulted from a fall greater than the height of a child or from a significant twisting of the child’s foot when it was locked into place. Res ipsa loquitur was warranted in this situation, giving an inference of negligence. Courts are, nevertheless, mindful that this doctrine “should be applied with caution and only in extreme cases.”[vii]

  1. Negligent Supervision

Unlike premises liability claims, which typically require a specific showing of a prior similar act on a defendant’s property; claims for negligent supervision of a child do not necessarily require a prior similar act. The standard for these types of cases is “whether the danger of the type of harm the child suffered was reasonably foreseeable.”[viii] For example, a child being abducted from a daycare, getting struck by a car in the street, or drowning in a swimming pool are reasonably foreseeable dangers even though they may not have previously occurred at that particular facility.[ix] Of course, daycare facilities do not have the duty to foresee and guard against every possible hazard.[x] As a practical matter, a good question to ask when distinguishing between whether harm is foreseeable or not is “Do parents ordinarily worry about this type of situation hurting their children?”

  1. Punitive Damages

Punitive damages are available under O.C.G.A. § 51-12-5.1 to punish and deter a defendant when there is clear and convincing evidence of exceptionally bad conduct. Punitive damages cases involve aggravating circumstances.[xi] A claim for punitive damages against a daycare is usually only viable when there are prior similar incidents. However, a single incident of heinous conduct, such as using torture as a form of discipline on a child, may warrant the imposition of punitive damages. DECAL records are an important resource for finding prior incidents.

Pleading punitive damages, if warranted, poses a delicate situation because they are usually excluded from available coverage, which most likely triggers a reservation of rights letter. An insured may then lean heavily on the insurer to settle a case because the threat of a bifurcated trial creates very real risk of exposing the facility’s business assets.

[i] O.C.G.A. § 51-1-2.

[ii] Out of an abundance of caution or for tactical reasons, such as venue, a complaint may contain a separate count specifically naming the individuals involved in the incident. Additionally, there may be another count alleging respondeat superior liability under O.C.G.A. § 51-2-2 against the daycare facility based on that person’s actions in the course and scope of employment.

[iii] O.C.G.A. § 51-1-6.

[iv] O.C.G.A. § 591-1-1-32(1).

[v] O.C.G.A. § 24-14-9.

[vi] See Persinger v. Step By Step Infant Dev. Ctr., 253 Ga. App. 768, 770-771(2002).

[vii] Id. at 771.

[viii] See Wallace v. Boys Club of Albany, Ga., Inc., 211 Ga. App. 534, 536-537 (1993).

[ix] Id.; see also Applebrook Country Dayschool, Inc. v. Thurman, 278 Ga. 784, 786 (2004)(allowing expert testimony regarding infant sleep positioning in a negligent supervision case to assist the jury in determining whether the daycare breached its duty of care).

[x] See Doe I v. Young Women’s Christian Ass’n of Greater Atlanta, Inc., 321 Ga. App. 403 (2013)(holding that a sexual assault on a child by an older child was not reasonably foreseeable because there was a lack of evidence showing a proclivity by the older child to engage in acts of sexual violence or admissible evidence of other sexual assaults on the premises).

[xi] O.C.G.A. § 51-12-5.1(a).

Investigating a Daycare Negligence Case in Georgia

As parents are increasingly working outside of the home, children are spending more time at daycare facilities. Parents entrust these facilities with  the care of their vulnerable young sons and daughters, but unfortunately, these facilities too often fall short of their duties and responsibilities.

In this series, we will first focus on investigating daycare negligence cases, and then the next parts will explore litigating, and ultimately resolving these types of cases.

PRE-SUIT INVESTIGATION

The critical pre-suit component of a potential daycare negligence case is distinguishing between a simple childhood accident and an actionable claim against a daycare facility.[i]

Bright from the Start: Georgia Department of Early Care and Learning’s (“DECAL”) mission and vision, which is rooted in giving exemplary care and increasing the access to quality care, offers a valuable framework for these cases.[ii] This agency is tasked with a number of responsibilities, such as the licensing and monitoring of all center-based and home-based childcare facilities across our state in addition to providing technical assistance and professional development to early childhood educators. A daycare facility’s statutory obligations are set forth under O.C.G.A. § 591-1-1 et seq. These regulations encompass a wide array of areas ranging from admission standards and field trips to kitchen operations and parental access.[iii]

Failure to perform a criminal records check for employees and volunteers and improper staff to child ratios can play a critical role in establishing liability against the daycare facility.[iv] Daycare facilities have a duty to report “[a]ny serious illness of injury requiring hospitalization or professional medical attention other than first aid.”[v] These reports are available online.[vi] However, many of these facilities are derelict in this duty.[vii] An investigation will typically commence within one to three days of the report, and Bright from the Start will issue a written report within thirty to forty-five days.

Along with DECAL’s investigation, pragmatic issues also need to drive the pre-suit investigation phase of these cases:

  1. Verify Insurance Information

Georgia does not require daycare facilities to have insurance.[viii] If a daycare facility does not maintain insurance, then the facility must place a conspicuous sign alerting the families. Facilities have been known, however, to neglect posting this signage. A candid conversation needs to take place at the initial meeting with the family, especially in situations with catastrophic injuries. Simply put, a request for disclosure of insurance policy limits under O.C.G.A. § 33-3-28 needs to be sent at the earliest possible stage.

  1. Preserve Evidence of the Claim

Visual evidence is critical to a daycare negligence case. A preservation of evidence letter premised on O.C.G.A. § 24-14-22 is a valuable way to ensure that all relevant evidence is retained by the daycare facility. Daycare facilities are placing surveillance cameras within the classrooms with more regularity these days. Footage of the incident itself helps to substantiate or perhaps even rebut the underlying claims. Some footage, has revealed sordid treatment of a child by the staff, such as such as allowing a disabled child to get repeatedly attacked with a broom by other children. Other footage has revealed staff yelling directly into a child’s ear as a form of discipline. This type of footage helps a jury (and an adjuster) to become more attuned to the stark realities of these terrible situations.

Aside from developing liability arguments in a case, photographs are equally valuable for demonstrating the full measure of damages. Children are very resilient. The physical injuries and symptoms may seemingly disappear within a month of the incident. With the reality of a jury trial more than a year in the future, pictures taken immediately after the incident, ensure that a facility does not minimize the severity of the incident. These photographs are also useful in negotiating the claim, and can be sent with the demand package. The juxtaposition of a picture of the injured child before and after the incident is particularly effective For those cases that do go to trial, jurors will be able to see for themselves the pain and suffering endured by the child victim.

  1. Seeking Alternate Daycare

In addition to the emotional toll after an incident, parents are also tasked with the difficult decision of finding alternative care. Alternate care may rest with a friend, family member, or another facility. If a child remains at the same daycare facility, then there are very real risks to a case. An insurance adjuster and defense counsel may suggest that the parent’s decision to keep the child at the same facility means the facility was not dangerous in reality. Fortunately though, a family is usually well positioned to seek reimbursement for some, if not all, of extra daycare expenses for a reasonable amount of time.

Attorneys need to be an emotionally supportive and trusted advisor to clients during the investigative phase because emotions are still very raw at this stage

[i] See La Petite Acad. v. Turner, 247 Ga. App. 360, 362 (2000)(concluding that a daycare facility has “no duty to foresee and guard against every possible hazard”); see also Persinger v. Step By Step Infant Dev. Ctr., 253 Ga. App. 768, 769 (2002).

[ii] Ga. Dept. of Early Care and Learning, Mission and Vision Statement, http://decal.ga.gov/Bfts/MissionStatement.aspx (last updated 2016).

[iii] Id.

[iv] See, e.g., O.C.G.A. § 591-1-1.09(1)(a) (“[e]very actual and potential Director, Employee and Provisional Employee of a Child Care Learning Center must have a Satisfactory Records Check Determination […]”; O.C.G.A. § 591-1-1.32(1) (setting forth specific grouping of children for care and staff to child ratios).

[v] O.C.G.A. § 591-1-1.29(c)(2) (requiring a report within twenty four (24) hours to DECAL concerning “[a]ny serious illness or injury requiring hospitalization or professional medical attention other than first aid of a child while in the care of a Center”).

[vi] Ga. Dept. of Early Care and Learning, Provider Site Search, http://decal.ga.gov/ProviderSearch/SiteSearch.aspx?childcare=y&newsearch=y (last updated 2016).

[vii] Fortunately, parents and guardians also have the ability to report incidents. Complaints can be made via email to ccscomplaints@decal.ga.gov or by calling (404) 657-5562.

[viii] O.C.G.A. § 20-1A-4.

Are daycares in Georgia required to have insurance?

A key, but oftentimes overlooked, question to ask a potential daycare for your child is whether or not the daycare actually has insurance. As parents, we sometimes assume that a daycare has insurance; however, Georgia law does not require your daycare to carry insurance. If the daycare doesn’t have insurance, then the daycare has to post a conspicuous sign and notify parents and guardians in writing about this danger.

Screen Shot 2016-04-03 at 10.26.04 AM

The Georgia Department of Early Care & Learning – Bright From the Start (“DECAL”) handles most of the aspects for daycares, like ensuring that uninsured daycares notify people. The exact wording of the law dealing with insurance is set out under a statute, O.C.G.A. § 20-1A-4(9):

The Department of Early Care and Learning shall have the following powers and duties:

[…]

(9) To recommend in writing to the owner of any early care and education program licensed by the department that such program carry liability insurance coverage sufficient to protect its clients. Any such program which after receiving such recommendation is not covered by liability insurance shall post that fact in a conspicuous place in the program and shall notify the parent or guardian of each child under the care of the program in writing. Such notice shall be in at least 1/2 inch letters. Each such parent or guardian must acknowledge receipt of such notice in writing and a copy of such acknowledgment shall be maintained on file at the program at all times while the child attends the program and for 12 months after the child’s last date of attendance. Failure to do so may subject the owner of the program to a civil fine of $1,000.00 for each such infraction; (emphasis added)

Sometimes the uninsured daycares will neglect to notify parents despite this mandate from DECAL. Parents and guardians should always remain proactive and ask this questions before enrolling their children. In the event that there is an unfortunate accident caused by the a mistake by the daycare or its employees, there needs to be insurance in place to compensate adequately the child and family for the harms and losses.

While many parents are dismayed to learn that some daycares do not have insurance, this law at least is a step in the right direction for Georgia parents with children in daycares. Years ago, daycares did not even have to notify parents about insurance, or the lack thereof. Governor Sonny Perdue signed a bill in to law in 2004 known as “Juan’s Law” after a terrible tragedy struck a young boy and his family.

So please take a moment to ask this important question next time you are looking at a daycare for your son or daughter and remind your loved ones to do the same. If you have any questions about it, feel free to give us a call or send an e-mail. We are here to help you and your family!

A Reflection on the Importance of Mentors

As we welcome the springtime months, we often set expectations and goals for our future legal endeavors, like beginning a new practice, making partner or simply trying a case. These plans inspire us to forge ahead into these beautiful months. A mindfulness of our past experiences, especially the role of mentors, should also guide these future aspirations. So accordingly, I would like to devote this editorial to a mentor of mine, Chief Judge John H. Bailey Jr. of the Northern Judicial Circuit Superior Court, and share one of the many important lessons that he taught me during my clerkship with him several years ago.

Mentors help us bridge the gap between the technical aspects of law school and the life of the law, which according to Oliver Wendell Holmes Jr., is experience. To illustrate this point: first, Judge Bailey knew from experience that the practice of law extends well beyond a bare interpretation of a statute. Non-lawyers have a tremendous amount of wisdom to offer all of us. By listening to the bailiffs and deputies, we learned about the root causes of disputes and dynamics in the local community. Second, the experience with Judge Bailey fostered an enduring appreciation for individuals, like Mrs. Pam and Mrs. Susan, who worked tirelessly behind the scenes to ensure an efficient calendar and timely transcripts. Third and most importantly, Judge Bailey instilled a fundamental sense of fairness in all of us. He would often remark, “No matter how small the pancake, it always has two sides.” At the most basic level, he taught us that the practice of law is distinctly human.

The lessons learned from Judge Bailey continue to grow in meaning even after the clerkship. A mentor is truly a life-long friend. Judge Bailey celebrated with us at our wedding and shared in our joy when we welcomed our first child. Fellow young lawyers, I respectfully ask that each of you take a moment to thank the mentors in your lives. One day we can carry on this fine tradition of mentoring others in our profession.

The Basic Principles of Kevin Patrick Law

As an experienced and respected Georgia personal injury attorney, I devote my practice to helping individuals and families throughout the state. I handle wrongful death and other serious injuries, as well as trucking and automobile accidents. You are not alone. Along with these types of cases, a particular area of focus for me is daycare abuse cases. I am the father of a four month old son. I firmly believe that the young, who are sometimes the most vulnerable, deserve to be treated with the highest level of care and support. The practice of law is more than a job to me. I am committed to preserving the constitutional right to a trial by jury and ensuring equal justice for all people in our community. To this end, I am admitted to practice before the United States Supreme Court, Supreme Court of Georgia, Eleventh Circuit Court of Appeals, and all other state and federal courts in Georgia.

I founded Kevin Patrick Law with four guiding principles:

Cases involve real people:

Your case is not just another file. I will always make the time to meet with you in person about your case. I want to make sure your family knows just how important they are to my practice. Your child will also get a stuffed-animal. Other firms use investigators to assess your case, but here you will actually get to talk to an attorney. I am happy to come to see you and your family at your home, the hospital, or even a favorite restaurant. You will be treated like close friends and family.

There is no substitute for hard work:

Advertisements on the television and radio promise easy solutions and quick-fixes. I don’t take shortcuts with your case. Hard work is the key to a successful case and firm. In fact, I only take a select number of cases in order to meticulously prepare each one for trial. Other attorneys recognize that I am willing to go the extra mile for my clients, which in turn leads to better financial recoveries for you.

Watch-out for insurance companies:

After representing insurance companies and other large corporations for several years, I came to the stark realization that they put profits above people. Insurance companies intimidate and take advantage of good, hardworking people. Now that I understand these unfair tactics, I am able to protect you and your family by navigating around them to achieve maximum settlements.

Do the little things right:

You can expect that your phone calls and e-mails will be promptly returned by me. I ultimately work for you. It’s not uncommon for a client to call the office at 9:00 pm only to have me answer the phone. You matter!