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 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 or 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:
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.
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 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 being more than a year in the future, pictures taken immediately after the incident can 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.
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, 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).
[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).
[viii] O.C.G.A. § 20-1A-4.