How a Daycare Injury Lawsuit Works

Last updated on: November 21, 2019


Daycares and daycare services are frequently utilized by parents across the country.  When parents enroll their child in a daycare, it is expected that the child will be taken care of and adequately supervised.  Unfortunately, accidents and injuries do occur.  In some of these cases, the daycare or the daycare staff may be held liable for any resulting injuries and damages.  This article will provide some helpful advice regarding daycare injuries, including how to file a claim against a daycare, what forms of compensation may be pursued, and how waivers of liability may affect claims.

If your child has been hurt while under the supervision of a daycare, or if you would like to learn more about the claim-filing process, call Zinda Law Group at (512) 246-2224 to receive a free case evaluation with a daycare abuse lawyer.

Establishing Liability and Proving Fault

To succeed on a personal injury claim initiated on behalf of your child against a daycare, a party must establish that the daycare was negligent in some way.  This can be done by establishing the following factors:

1. The daycare had a duty to supervise and protect your child

The first step in establishing liability in a negligence lawsuit is establishing that the daycare owed a duty of care to the injured party.  Although the precise definition of “duty of care” largely depends on the relationship between the parties involved in a lawsuit, the term generally means a duty to keep someone safe or to refrain from engaging in conduct that could cause someone harm.  In this context, the party bringing the lawsuit must show that the daycare and its staff had a duty to act reasonably.  In other words, the daycare had a duty to take necessary precautions to ensure that the child did not suffer an injury.

2. The daycare breached its duty of care

After establishing that a daycare had a duty, the next step is to show that the daycare breached its duty.  Proving this element often requires evidence such as accident report forms, witness statements, expert testimony, surveillance footage, and medical records.  Such evidence may be collected by an attorney throughout the litigation process and may serve as a crucial part of your claim.

3. The daycare’s breach of its duty caused the injuries sustained by your child

The third part of succeeding on a negligence claim is establishing a link between the daycare’s breach of duty and the harm sustained by the injured child.  In other words, the plaintiff must prove that the defendant’s actions or inactions directly caused the child’s injuries.

4. Your child sustained injuries whose nature and value can be supported by proof

The final part of proving negligence is referred to as proving “damages.”  Proving damages means proving that the injured child suffered some type of harm.  In daycare injury cases, this means establishing that your child suffered some sort of injury.  Part of this analysis also involves showing the financial loss that has been incurred as a result of the child’s injuries.

Making a Claim on Behalf of Your Child

Because a child does not have the legal capacity to file a lawsuit on their own, personal injury litigation in child injury cases involves an adult standing-in for the injured child as “next friend.”   Typically, this “next friend” is one or both of the child’s parents.  Thus, a parent of an injured child may have the option to sue the daycare on behalf of the child following an injury.  Listed below are several important steps that comprise the claim filing process.

1. Determine Whether to File a Claim

Before suing a daycare for negligence, it is first necessary to assess the strength and credibility of your claim.  In other words, you should first determine whether the nature and extent of the injury justify filing a lawsuit.  Generally, the more serious the injury, the more likely a lawsuit is justified.  Answering this question will likely require you to assess the totality of the circumstances, including how the injury occurred, how long the injury has lasted, and whether any medical bills were incurred as a result of the injury.

2. Contact an Attorney

If you have determined that a lawsuit should be filed on behalf of your child, your next step should be to contact a personal injury lawyer.  A lawyer may discuss the facts of the case with you and may be able to provide legal advice regarding your claim.  If necessary, the lawyer may take the appropriate steps to timely file a claim.

3. Investigation

The investigation phase of a child injury claim involves the lawyer collecting important evidence which may be used to establish the daycare’s liability.  For instance, the lawyer may decide to interview daycare staff members and witnesses to the accident in order to understand their version of the events leading up to the injury.  The lawyer may also review daycare surveillance footage or company policies and guidelines.  The investigation process may also involve accounting for financial damage incurred, such as medical bills and pharmacy costs.

4. Settlement and Lawsuit

After investigation, your case may proceed to the litigation stage.  Prior to trial, there may be an option of setting the claim.  If it is not in your child’s best interests to accept the settlement offer, your case may be litigated in court.  At the trial stage, the personal injury lawyer may advocate on your child’s behalf.

Will a Liability Waiver Affect My Claim?

It has long been common practice for daycares to include a “liability waiver” or “liability clause” in their contracts and paperwork.  During the initial enrollment stage, daycares may require unwitting parents to sign these contracts which contain some form of liability waiver.

Although the exact language of a liability waiver may differ from daycare to daycare, the overall purpose of these waivers remains the same.  These waivers mean that the daycare is claiming that it will not be held responsible for any injuries that the child may sustain while under the supervision of the daycare.  In other words, the daycare is saying that you have surrendered your right to sue the daycare for caregiver negligence in the event that any harm is inflicted upon your child.

In many cases, parents will sign these contracts without carefully looking over the terms of the contract.  In other words, parents often agree to liability waivers without even knowing they have done so.  Thus, when an injury to a child does occur, the daycare will likely argue that the parents cannot pursue legal action because they have signed the waiver.

Thankfully, these waivers are looked upon unfavorably by courts.  Courts have held that liability waivers are against public policy because it is unfair for a daycare to make money for watching your children while not having to be responsible for ensuring their safety.  Overall, this means that legal action may still be possible even if a liability waiver has been signed.

If you were required to sign paperwork before enrolling your child in daycare, and your child subsequently suffered an injury, it may be in your interest to consult with a personal injury attorney.


The claims involved in daycare negligence cases can be viewed as being separated into two parts.

The first part are claims that belong to the parents in their individual capacity.  Examples of claims that may belong to the parents in their individual capacity include medical bills and pharmacy bills.  Other examples may include attorney’s fees and case expenses in instances where a personal injury lawyer is hired by the parents of the injured child.

The second part are claims that are personal to the child.  Examples of claims that are person to the child may include:

  • Pain and suffering
  • Physical impairment
  • Disfigurement
  • Mental anguish

It is important to note that any money ultimately awarded to the child is required to be protected for the child.  This may involve the child’s portion being put into a trust account maintained by the court, where the trust account will accrue interest.  When the child turns 18 or is otherwise declared an adult, the money will be released to the child.  A parent may petition the court for early release of some or all of the money.  However, a court will grant this petition only if it feels that such action is in the best interests of the child.

Legal Time Limits

A “statute of limitations” is a legal time-limit on which a person must initiate a lawsuit.  If a person fails to bring a claim within a statute of limitations, that person is effectively barred from litigating the claim in court.  In many states, the claims of the parents of an injured child are generally subject to a two- or three-year statute of limitations.  This means that a parent interested in bringing a claim following the injury of a child must file a lawsuit within two or three years of the date of the accident.  Because a statute of limitation can destroy a personal injury claim, it may be in your best interests to consult with a personal injury attorney following an accident.

If Your Child Has Been Injured, Consider Contacting Zinda Law Group

If your child has been injured at daycare and you are considering filing a claim, contact the daycare injury lawyers at Zinda Law Group for a free consultation. The attorneys may offer a perspective of your case from a legal point of view and direct you to the best course of action. If you become our client, you will not owe us anything if we do not reach a favorable result.

To schedule your free consultation, call us today at 512 246 2224.

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