Legal News & Updates

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.


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, (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, (last updated 2016).

[vii] Fortunately, parents and guardians also have the ability to report incidents. Complaints can be made via email to 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!