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Congratulations to Jacqueline Boatwright-Daus!!!

We want to extend a special congratulations to Mrs. Georgia International Jacqueline Boatwright-Daus. She was recently invited to the Pentagon to speak with senior members about the continued importance of daycare safety and the need for improved regulations.

As many of you know, Jaimg_3462ckie is known as the woman who single handedly changed the face of child day care in Georgia through her advocacy which resulted in the passage of Juan’s Law in 2004 named in honor of her late son who died as a result of injuries sustained at his state licensed child care center. Her tenacious fight for change was again victorious in the state of Virginia who also passed Juan’s Law in 2006. She took her fight to the United States Capitol and gained another success for her cause with the passagimg_3463e of The Anthony DeJuan Boatwright Act in 2009.

Jackie is truly carrying on the legacy of   beautiful son Juan. A tragic situation at a daycare, like the one that happened to Jackie’s son, should never have to happen again! We all can cary on Juan’s legacy by continuing to reach out to local and national officials to make sure that the topic of daycare negligence stays on their agendas each and every leadership session. At the very core, the safety and well-being of our children is cause that should unify all members of legislative body in Georgia and our county.

For more information on daycare negligence or ways to become involved in helping with our efforts to improve the standard of care in daycares across Georgia and the country, please contact us at (404) 566-8964 or kevin@patricktriallaw.com. We are one of the few firms in Georgia with a practice specifically focusing on daycare negligence. You can also visit Jackie’s website for more details on becoming involved in this noble and wonderful cause. Together we can truly make positive changes in our community and, most importantly, prevent daycare negligence.

Valuation and Settlement Strategies for Day Care Negligence Cases

Daycare negligence cases present novel issues relating to valuation and settlement because the emotional and psychological damages can be difficult to quantify. Medical bills do not always accompany those damages. Furthermore, children may be unable to articulate the problems caused by an abusive situation at a daycare facility until they are more mature. By that point, the statute of limitations may have expired for certain claims.

The facility and insurance carrier usually attempt to downplay the value of case by harping on modest medical expenses, but there are other types of damages in these situations. For example, the increased costs of childcare can be multiplied over the course of several years, and parents have a right to be reimbursed for their time away from work for doctor’s appointments. A common approach for the facility and insurance carrier in calculating the total settlement offer is to simply multiply the special damages by a factor of one or two. The plaintiffs can combat this approach with dialogue along these lines: “We can all agree that this case isn’t just another soft tissue car accident case, right?” Emotional value carries a premium.

One way to maximize the ultimate value of a case is through a structured annuity settlement. An annuity is a contractual agreement with a financial institution designed to turn a lump sum settlement into periodic payouts over time. The gross payouts from an annuity has the potential to exceed the settlement amount itself. Whether this is a good option in any particular case will depend on the unique financial situation of the child’s family. A structured annuity settlement, if untouched, may help the family pay for higher education.

O.C.G.A. § 29-3-3 governs the settlement of minor’s claims. This statute is complex, but as a general rule of thumb, a parent or natural guardian is permitted to settle a minor’s claim without becoming the conservator or seeking approval from the court when the gross amount is less than Fifteen thousand dollars ($15,000.) From a practical perspective, a settlement for small claims right below this threshold helps to avoid protracted litigation and possible attorney’s fees.

Treating a child’s case as a ‘run of the mill’ accident violates everyone’s fundamental sense of right and wrong. As trial lawyers, we hold the keys to helping secure a brighter future for injured children and their families.

Juan’s Law: Saving Georgia’s Day Care Children

Given our firm’s focus on daycare negligence, we were delighted to meet Mrs. Jacqueline Boatwright-Daus, who as Mrs. Georgia International 2016, is championing the prevention of daycare injuries. She graciously put together an article for lawyers in the state of Georgia about her son’s story:

Fact Finding

After weeks of searching, I’d finally found the child care center for my 3 month old son. It was perfect; clean, small, and close to home. I spent two or more hours quizzing the center owner from my prepared list of questions. My eyes fixated on the owner’s body language, waiting for her to blink, or show any form of nervousness with each asked question, a fixation so strong that it was only broken when she dropped her pen and bent down retrieve it, revealing what sealed the deal; her state issued licensed. Twelve months later, that license would deem worthless in my opinion. My then 14 month old son was found head first in an unattended bucket of mop water containing bleach and other chemical at his state licensed child day care center leaving him semi-comatose and ventilator dependent. For next 10 years, our lives were emotionally, physically, and financially broken. His name was Anthony DeJuan Boatwright affectionally known as “Juan.”

Failure and Fault

To add insult to my son’s injury, I would find out that the state of Georgia does not require state licensed child care centers to carry any form of liability insurance nor to inform unsuspecting parents. This had to be one of, it not the greatest oversights in the history of law making. My plumber was licensed, insured, and bonded, so was the contractor that did work on my home. In fact, I had to have liability insurance on my car, my house, and the lovely pool in my back yard. Truth be told, I felt I’d failed my son; but I knew in my heart my state and the child care center failed my son and me by not sharing information that could have possibly impacted my decision in choosing a child care center. In the midst of being broke, busted, and borderline disgusted, I knew that my son’s life had to mean something. The world never got to know the little boy whose only clear articulated words were “thank you.” He never made it out of daycare.

Fight or Flight

After nearly losing everything I’d worked so hard to obtain, I chose to spend the rest of my life fighting for the children who were presently attending child care and those who were yet to come. I won my first battle in 2004 when then Governor Perdue signed Juan’s Law, requiring child care centers in Georgia to inform parents of their insurance status by posting if they were uninsured and by getting parents to sign an affidavit stating the parents were aware that they were leaving their child with an uninsured, although state licensed, child care center. My second battle was won in 2006 when then Governor Tim Kaine of Virginia signed Juan’s Law. Persuading the federal government of their involvement resulted in the US House passing The Anthony DeJuan Boatwright Act in 2007 and again in 2009. Should this pass out of the Senate, this would cover the nearly 40 other states that do not require child day care centers to carry liability insurance and I know save millions of lives of children around our country.

In sum, the efforts made by Mrs. Boatwright-Daus continue to help our children in day care facilities, but we must continue to press these issues in order to carry on the legacy of Juan.

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.

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.

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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!