That night, their child was fussy, and they found bruises on her upper arm but she obviously could not tell them what happened. The parents were mortified. They did not know what to do or who to call or what their rights were.
They properly took their daughter to her pediatrician and then to Children’s Healthcare of Atlanta for full X-rays and examination. Fortunately, she had suffered no injuries outside of bruising on her arm. But it was clear that something went wrong at the daycare.
We started our investigation by reporting the incident to the Department of Early Care and Learning (“DECAL”) and Bright From The Start (“BFTS”) – http://www.decal.ga.gov/. This entity regulates the actions of daycare facilities in Georgia.
We worked with BFTS on their investigation and were able to secure information of prior problems at this particular facility. After conducting their investigation, the allegations were “substantiated” and the facility was cited with a violation of section 591-1-1-.11 Discipline; Rule .11(2) Physical, Over Conduct. The facility accepted the citation and paid the accompanying fine.
Now it was time for us to present the civil claim against the daycare for our clients money damages. We presented the daycare’s insurance compnay with the BFTS citation and the following case law:
“…With regard to the second element of res ipsa loquitur, the instrumentalities at issue are the day care workers themselves, who had complete authority and responsibility for the children. Furthermore, the parents testified that the child was in good health when he was placed at the facility. As for the final element, there is no evidence that James contributed to the kind of injury that the expert testified happened.”Persinger v. Step By Step Infant Dev. Ctr., 253 Ga. App. 768, 771, 560 S.E.2d 333, 337 (2002)
See also, Ward v. Forrester Day Care, 547 So.2d 410 (Ala.1989) (negligence inferable where 11–week–old child suffered unexplained broken arm in day care); Zimmer v. Celebrities, Inc., 44 Colo.App. 515, 516–519, 615 P.2d 76, 78–79 (1980) (negligence inferable where 25–month–old child sustained a skull fracture while in day care); Myers v. Moore, 240 Mo.App. 726, 217 S.W.2d 291 (1949) (negligence inferable where five-week-old child sustained animal bites while under the care of a nursery).
(Quoted with approval by Persinger v. Step By Step Infant Dev. Ctr., 253 Ga. App. 768, 771, 560 S.E.2d 333, 337 (2002)).
We did not just stop there. While we were not provided the surveillance footage from inside the classroom because ultimately our clients did not want to file a lawsuit, we did review a written summary that confirmed there was video the teacher forcefully grabbing and roughly redirecting our client. Of course there was. These facilities have cameras everywhere.
We then asked the insurance company these questions:
- What defense does the facility actually have?;
- How will the facility explain their continues problems with abiding by BFST rules and regulations?;
- How is the facility going to explain away a finding of improper discipline and,
- Every juror seated in this case will ask him/herself “what if that were my child?”
There were no good answers and at this point, it was just a matter of how much the insurance company was going to pay to avoid a lawsuit [that frankly our clients did not want anyway].
As they always do in these types of cases, the insurance company argued the medical bills were small and the physical injuries were not severe – which I supposed they were right about. But that was not how the settlement value of this particular case was to be determined. Instead, we ultimately resolved the case for 18 times what the medical bills were.
In Georgia, if you settle a case for a minor child for over $15,000 there is a law that requires you to get the settlement amount, and the way the funds will be used for the minor, approved by a Judge. We did that and the Court approved a plan that will put the minor’s money in a UTMA (Uniform Transfer to Minor Account) that will grow and mature into a great bucket of funds for college tuition when she turns 18.
Fortunately, our one-year-old client will never remember this event happened but she will have a great financial head start in life and the facility sure will remember this and we can only assume they put on additional training for their teachers to make sure this does not happen again.