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Daycare Injury LitigationAssessing Claims, Proving Causation and Foreseeability,Navigating Complex Valuation and Settlement Issues

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TUESDAY, MARCH 7, 2017

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Today’s faculty features:

Jess Johnson, Esq., Pate & Johnson, Atlanta

Christopher Keane, Founder, Keane Law Firm, San Francisco

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DAYCARE INJURY LITIGATION:ASSESSING CLAIMS, PROVING

CAUSATION & FORESEEABILITY,NAVIGATION COMPLEX VALUATION

AND SETTLEMENT ISSUES

DAYCARE INJURY LITIGATION:ASSESSING CLAIMS, PROVING

CAUSATION & FORESEEABILITY,NAVIGATION COMPLEX VALUATION

AND SETTLEMENT ISSUES

Christopher KeaneJess Johnson

March 7, 2017

Assessing casesBefore you interview anyone, know what yourend game is:

Personal paradigmon taking casesPersonal paradigmon taking cases

Big cases only?• Death, brain injury,

(partial) amputation,sex abuse

• Failure to providemedicine leading todeath

• Asphyxiation• Shaken baby/Abusive

head trauma• Doors/fingers

Big cases only?• Death, brain injury,

(partial) amputation,sex abuse

• Failure to providemedicine leading todeath

• Asphyxiation• Shaken baby/Abusive

head trauma• Doors/fingers

Small cases/bigvolume?• broken bones, scars

• Falls from playgroundequipment

• Pushing• Jumping onto child• Falls onto sharp objects

Small cases/bigvolume?• broken bones, scars

• Falls from playgroundequipment

• Pushing• Jumping onto child• Falls onto sharp objects

Mixedcaseload?Mixedcaseload?

Happiness quotient- Unlikely to regret a case you turn down,

but may forever regret a case you took- Client is the child, but your audience is

mom and dad- A parent puts his child in daycare because

he/she trusts the daycare. By the timeyou are called, the trust has beendecimated.

Happiness quotient- Unlikely to regret a case you turn down,

but may forever regret a case you took- Client is the child, but your audience is

mom and dad- A parent puts his child in daycare because

he/she trusts the daycare. By the timeyou are called, the trust has beendecimated.

Happiness quotient- Managing expectations of distrustful

parent who has mixed (or unknown)goals- Few have goal of money, but that is all

we can do in civil system- The people the parents want to teach

a lesson (i.e. the daycare operator orworkers) will have absolutely nothingto do with the civil claim.

- Adjuster in cubicle will not care abouttheir broken trust.

Happiness quotient- Managing expectations of distrustful

parent who has mixed (or unknown)goals- Few have goal of money, but that is all

we can do in civil system- The people the parents want to teach

a lesson (i.e. the daycare operator orworkers) will have absolutely nothingto do with the civil claim.

- Adjuster in cubicle will not care abouttheir broken trust.

Happiness quotient- In smaller cases, where broken trust is asbig as in large cases, get parents tounderstand that they will have to declarevictory on their own terms and to use thecase as way to demonstrate to child later on(and to themselves now) that they stood upto correct an injustice, heal and moveforward.

Happiness quotient- In smaller cases, where broken trust is asbig as in large cases, get parents tounderstand that they will have to declarevictory on their own terms and to use thecase as way to demonstrate to child later on(and to themselves now) that they stood upto correct an injustice, heal and moveforward.

Interviewing theparents…not theclients.

Interviewing theparents…not theclients.

Treat the parents like you wouldtreat any parent. Parents wantto know you care about theirchild. If you don’t care, don’ttake the case. They werealready mistreated as parentsonce, don’t become part of thebad memory. Help them pivotforward.

Treat the parents like you wouldtreat any parent. Parents wantto know you care about theirchild. If you don’t care, don’ttake the case. They werealready mistreated as parentsonce, don’t become part of thebad memory. Help them pivotforward.

Ask… how their child is doing?Every time. While you mayknow the child will heal up, theparent is not sure so be patientwhile they catch up to you..Builds trust and eventuallyallows them to resolve the casein their own mind.

Ask… how their child is doing?Every time. While you mayknow the child will heal up, theparent is not sure so be patientwhile they catch up to you..Builds trust and eventuallyallows them to resolve the casein their own mind.

Factually, usually not a witnessto the incident – but often awitness to what they were toldand when. Get them to helpestablish a timeline.

Factually, usually not a witnessto the incident – but often awitness to what they were toldand when. Get them to helpestablish a timeline.

Cell phones: time of phone callsand voicemail

Security video: were they shownvideo? Request copy.

Licensing: make a report

Cell phones: time of phone callsand voicemail

Security video: were they shownvideo? Request copy.

Licensing: make a report

Healthcare: parents should treatchild like a child who is injured,not have a lawyer manage his orher care.

Follow healthcare advice, or getanother one.

Have them write down whatthey recall right away. He withnotes wins.

Follow healthcare advice, or getanother one.

Have them write down whatthey recall right away. He withnotes wins.

Evaluating sources ofrecoveryEvaluating sources ofrecovery

Daycare:- Is it insured?- Is it in commercial space

or private home?- If in-home, is there a

rider for businessactivity/daycare – or is itexcluded?

- If no coverage, thedaycare operator maystill be collectible(spouse works/ownshome)

Daycare:- Is it insured?- Is it in commercial space

or private home?- If in-home, is there a

rider for businessactivity/daycare – or is itexcluded?

- If no coverage, thedaycare operator maystill be collectible(spouse works/ownshome)

Mandated reporters:- Look for preceding

signs of child abuse:bruises, history of childbeing hit…Each statehas list of mandatedreporters. May bemore collectible thandaycare provider.

Mandated reporters:- Look for preceding

signs of child abuse:bruises, history of childbeing hit…Each statehas list of mandatedreporters. May bemore collectible thandaycare provider.

Mandated Reporters (cont):- If crime, or potential

crime, and daycareprovider denies doing it,consider alleging daycarefailed to prevent putativecriminal from coming ontopremises. No need toprove who did it, just thatit happened at daycare.

- If baby shaken (i.e.intentional act exclusion),consider negligentresuscitation

Mandated Reporters (cont):- If crime, or potential

crime, and daycareprovider denies doing it,consider alleging daycarefailed to prevent putativecriminal from coming ontopremises. No need toprove who did it, just thatit happened at daycare.

- If baby shaken (i.e.intentional act exclusion),consider negligentresuscitation

Childperpetrator/tortfeasor:- If over 5, his or her

homeowners insurancemay cover them.Failure to usereasonable care forchild of that age (i.e.did he or she behave asinstructed)

Childperpetrator/tortfeasor:- If over 5, his or her

homeowners insurancemay cover them.Failure to usereasonable care forchild of that age (i.e.did he or she behave asinstructed)

Perpetrator may have ownsource of revenue:- Family or personal

money (even out ofportion of perpetrator’sown structuredsettlement)

Perpetrator may have ownsource of revenue:- Family or personal

money (even out ofportion of perpetrator’sown structuredsettlement)

Parents:- State statutes for

recovery against parents:medical bills

Parents:- State statutes for

recovery against parents:medical bills

Homeowners- May cover “med-pay”,

even if no fault.

Consider pro bono

Homeowners- May cover “med-pay”,

even if no fault.

Consider pro bono

Proving Liability

What kind of tort?‐ Intentional acts v. negligent acts

Proving Liability

Intentional Acts:‐ Outside scope of employment‐ May need to argue negligent

hiring/retention/supervision‐ Insurance may not cover‐ Lengthy criminal investigation/prosecution‐ It’s not always crystal clear

Intentional Acts:‐ Outside scope of employment‐ May need to argue negligent

hiring/retention/supervision‐ Insurance may not cover‐ Lengthy criminal investigation/prosecution‐ It’s not always crystal clear

Proving LiabilityNegligent Acts• Lack of Supervision

‐ Child on child injuries (physical/sexualtouching)

‐ Child out of view (left on bus, falls, drowning,finger in door, burns, choking, etc.)

• Dangerous Conditions‐ Unsafe playground/classroom (accessible

chemicals, sharp objects, pooled water,elevated flooring, drains/holes, etc.)

Negligent Acts• Lack of Supervision

‐ Child on child injuries (physical/sexualtouching)

‐ Child out of view (left on bus, falls, drowning,finger in door, burns, choking, etc.)

• Dangerous Conditions‐ Unsafe playground/classroom (accessible

chemicals, sharp objects, pooled water,elevated flooring, drains/holes, etc.)

Proving LiabilityTo establish negligence against the operator of a daycare facility, a plaintiff must generally show:

1. A duty of care2. Breach of such duty3. Causation4. Injury or loss

To establish negligence against the operator of a daycare facility, a plaintiff must generally show:

1. A duty of care2. Breach of such duty3. Causation4. Injury or loss

Proving Liability

Duty: reasonable care‐ Whether a duty exists is usually decided by the

court.‐ While courts typically find that a special relationship

exists between a child and a day care, you needmore than an injury to establish a duty.

‐ A day care is not a child’s insurer: “A day careprovider does not insure the safety of the child andhas no duty to foresee and guard against everypossible hazard.” Persinger v. Step by Step, 560S.E.2d 333 (2002).

‐ The duty of a child care provider is to exercisereasonable care for the safety of the child gauged bythe standard of the average “reasonable parent.”Laite v. Baxter, 191 S.E.2d 531 (1972).

Duty: reasonable care‐ Whether a duty exists is usually decided by the

court.‐ While courts typically find that a special relationship

exists between a child and a day care, you needmore than an injury to establish a duty.

‐ A day care is not a child’s insurer: “A day careprovider does not insure the safety of the child andhas no duty to foresee and guard against everypossible hazard.” Persinger v. Step by Step, 560S.E.2d 333 (2002).

‐ The duty of a child care provider is to exercisereasonable care for the safety of the child gauged bythe standard of the average “reasonable parent.”Laite v. Baxter, 191 S.E.2d 531 (1972).

Proving Liability

Duty: reasonable care‐ Kids are different.‐ Children are entitled to care proportioned to

their inability to foresee and avoid the perilsthat they may encounter. Thurman v.Applebrook Country Daycare, 604 S.E.2d 832(2004).

‐ So the younger the child, the more care that’srequired.

‐ Did the day care exercise a measure of cautionwhich a reasonably prudent person would haveexercised in the same or similar circumstances?

Duty: reasonable care‐ Kids are different.‐ Children are entitled to care proportioned to

their inability to foresee and avoid the perilsthat they may encounter. Thurman v.Applebrook Country Daycare, 604 S.E.2d 832(2004).

‐ So the younger the child, the more care that’srequired.

‐ Did the day care exercise a measure of cautionwhich a reasonably prudent person would haveexercised in the same or similar circumstances?

Proving Liability

Duty: statutes, regulations, and rules‐ Most jurisdictions promulgate statutes,

regulations, or rules that day cares mustfollow (these are essentially duties owed tochildren).

‐ Most jurisdiction have a state agency whichwill investigate possible violations of theserules. If the state agency finds a violation, itmakes your job much easier.

‐ These state agencies will investigate andmake findings as to whether any statutes,regulations, or rules were violated.

‐ There are many different rules day cares mustfollow!!

Duty: statutes, regulations, and rules‐ Most jurisdictions promulgate statutes,

regulations, or rules that day cares mustfollow (these are essentially duties owed tochildren).

‐ Most jurisdiction have a state agency whichwill investigate possible violations of theserules. If the state agency finds a violation, itmakes your job much easier.

‐ These state agencies will investigate andmake findings as to whether any statutes,regulations, or rules were violated.

‐ There are many different rules day cares mustfollow!!

Proving LiabilityOne example is a broad supervision rule inGeorgia:

“Children shall be supervised at all times… Theperson supervising in the child care area must bealert, able to respond promptly to the needs andactions of the children being supervised…” Ga.Comp. R. & Regs. R. 591-1-1-.32

One example is a broad supervision rule inGeorgia:

“Children shall be supervised at all times… Theperson supervising in the child care area must bealert, able to respond promptly to the needs andactions of the children being supervised…” Ga.Comp. R. & Regs. R. 591-1-1-.32

Negligent Acts

Breach of DutyA breach of duty can be difficult to establish due toa child’s young age.

‐ Contextual details missing (time, location,circumstances surrounding the event)

‐ Changing/evolving storyYou may not get the whole story from the day care.

‐ The employee/day care may not self reportthe incident

‐ Evidence may be destroyed‐ The employee may be quickly fired and refuse

to cooperate

Breach of DutyA breach of duty can be difficult to establish due toa child’s young age.

‐ Contextual details missing (time, location,circumstances surrounding the event)

‐ Changing/evolving storyYou may not get the whole story from the day care.

‐ The employee/day care may not self reportthe incident

‐ Evidence may be destroyed‐ The employee may be quickly fired and refuse

to cooperate

Proving Liability

Breach of DutyLook to the state agency and police reports to fill inthe gaps.

‐ The state agency overseeing day cares willtypically do a thorough investigation (this maygive you leads on witnesses and evidence youdidn’t know existed).

‐ You may need to contact the state agency tostart an investigation.

Consider hiring a forensic interviewer/counselor tointerview child.

‐ Parents generally make for bad interviewers.

Breach of DutyLook to the state agency and police reports to fill inthe gaps.

‐ The state agency overseeing day cares willtypically do a thorough investigation (this maygive you leads on witnesses and evidence youdidn’t know existed).

‐ You may need to contact the state agency tostart an investigation.

Consider hiring a forensic interviewer/counselor tointerview child.

‐ Parents generally make for bad interviewers.

Proving Liability

CausationThe breach must be the proximate causeof the injury.Example: A student is inappropriatelytouched by another student in theclassroom for a very short period of time.Would the event have happened had theteacher been properly supervising? Howlong it lasted might be key.

CausationThe breach must be the proximate causeof the injury.Example: A student is inappropriatelytouched by another student in theclassroom for a very short period of time.Would the event have happened had theteacher been properly supervising? Howlong it lasted might be key.

Proving LiabilityForeseeability

“Negligence consists of exposing someone towhom a duty of care is owed to a foreseeable,unreasonable probability of harm.” Hodges v.Putzel Elec. Contractors, 580 S.E.2d 243, 247(2003).Was the duty put into place in an effort to preventthe harm that occurred?

Foreseeability“Negligence consists of exposing someone towhom a duty of care is owed to a foreseeable,unreasonable probability of harm.” Hodges v.Putzel Elec. Contractors, 580 S.E.2d 243, 247(2003).Was the duty put into place in an effort to preventthe harm that occurred?

Valuing claims

Valuing Claims1) Policy limits: usually the

cap, usually not an issuein smaller cases.

2) If less collectibletortfeasor, what is yourjoint and several law? Ifonly economic damages,then make sure you havean economic case.

Valuing Claims1) Policy limits: usually the

cap, usually not an issuein smaller cases.

2) If less collectibletortfeasor, what is yourjoint and several law? Ifonly economic damages,then make sure you havean economic case.

Valuing Claims (cont)3) Private defendant, no

insurance – can still workout

4) Costs of defense: private(big deal) v insured (notbig deal).

5) Costs of litigation vs.value of smaller injury –could net more nowthan later

Valuing Claims (cont)3) Private defendant, no

insurance – can still workout

4) Costs of defense: private(big deal) v insured (notbig deal).

5) Costs of litigation vs.value of smaller injury –could net more nowthan later

Valuing Claims (cont)6) Basics: scar revision,attendant care; life careplanning, liens (Ahlborn)

7) Worth it to take it?Become part of badmemory or the pathforward.

8) Refer it

Valuing Claims (cont)6) Basics: scar revision,attendant care; life careplanning, liens (Ahlborn)

7) Worth it to take it?Become part of badmemory or the pathforward.

8) Refer it

Negotiating Settlements

Game plan for proving your case- The child may not make a great witness.- The family may not want lengthy

litigation.- List your primary witnesses and their

expected testimony.- List your potential exhibits.

Game plan for proving your case- The child may not make a great witness.- The family may not want lengthy

litigation.- List your primary witnesses and their

expected testimony.- List your potential exhibits.

Negotiating Settlements

Official Documentation- Police report- Final investigative report from the state

agency overseeing day cares (this maytake several months)

- Investigative reports from priorinvestigations (establish a pattern)

Official Documentation- Police report- Final investigative report from the state

agency overseeing day cares (this maytake several months)

- Investigative reports from priorinvestigations (establish a pattern)

Negotiating Settlements

Psychological Therapy- Document the child’s therapy over time- Thoroughly explain any diagnosis- Provide a letter/opinion from the

counselor/therapist- How is this going to impact the child in

the future?

Psychological Therapy- Document the child’s therapy over time- Thoroughly explain any diagnosis- Provide a letter/opinion from the

counselor/therapist- How is this going to impact the child in

the future?

Negotiating Settlements

Photographs- Photograph the injury over time- Show the family/house/dog

Photographs- Photograph the injury over time- Show the family/house/dog

Thank You

Christopher KeaneKeane Law Firmckeane@keanelaw.com

Jess JohnsonPate & Johnsonjess@patejohnson.com

Christopher KeaneKeane Law Firmckeane@keanelaw.com

Jess JohnsonPate & Johnsonjess@patejohnson.com