Daycare Injury Litigation Assessing Claims, Proving Causation and - - PowerPoint PPT Presentation

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Daycare Injury Litigation

Assessing Claims, Proving Causation and Foreseeability, Navigating Complex Valuation and Settlement Issues

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific 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 Keane Jess Johnson March 7, 2017

Assessing cases

Before you interview anyone, know what your end game is:

Personal paradigm

• n taking cases

Personal paradigm

• n taking cases

Big cases only?

• Death, brain injury,

(partial) amputation, sex abuse

• Failure to provide

medicine leading to death

• Asphyxiation
• Shaken baby/Abusive

head trauma

• Doors/fingers

Big cases only?

• Death, brain injury,

(partial) amputation, sex abuse

• Failure to provide

medicine leading to death

• Asphyxiation
• Shaken baby/Abusive

head trauma

• Doors/fingers

Small cases/big volume?

• broken bones, scars
• Falls from playground

equipment

• Pushing
• Jumping onto child
• Falls onto sharp objects

Small cases/big volume?

• broken bones, scars
• Falls from playground

equipment

• Pushing
• Jumping onto child
• Falls onto sharp objects

Mixed caseload? Mixed caseload?

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 time you are called, the trust has been decimated.

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 time you are called, the trust has been decimated.

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 or workers) will have absolutely nothing to do with the civil claim.

• Adjuster in cubicle will not care about

their 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 or workers) will have absolutely nothing to do with the civil claim.

• Adjuster in cubicle will not care about

their broken trust.

Happiness quotient

• In smaller cases, where broken trust is as

big as in large cases, get parents to understand that they will have to declare victory on their own terms and to use the case as way to demonstrate to child later on (and to themselves now) that they stood up to correct an injustice, heal and move forward.

Happiness quotient

• In smaller cases, where broken trust is as

big as in large cases, get parents to understand that they will have to declare victory on their own terms and to use the case as way to demonstrate to child later on (and to themselves now) that they stood up to correct an injustice, heal and move forward.

Interviewing the parents…not the clients. Interviewing the parents…not the clients.

Treat the parents like you would treat any parent. Parents want to know you care about their

• child. If you don’t care, don’t

take the case. They were already mistreated as parents

• nce, don’t become part of the

bad memory. Help them pivot forward. Treat the parents like you would treat any parent. Parents want to know you care about their

• child. If you don’t care, don’t

take the case. They were already mistreated as parents

• nce, don’t become part of the

bad memory. Help them pivot forward.

Ask… how their child is doing? Every time. While you may know the child will heal up, the parent is not sure so be patient while they catch up to you.. Builds trust and eventually allows them to resolve the case in their own mind. Ask… how their child is doing? Every time. While you may know the child will heal up, the parent is not sure so be patient while they catch up to you.. Builds trust and eventually allows them to resolve the case in their own mind.

Factually, usually not a witness to the incident – but often a witness to what they were told and when. Get them to help establish a timeline. Factually, usually not a witness to the incident – but often a witness to what they were told and when. Get them to help establish a timeline.

Cell phones: time of phone calls and voicemail Security video: were they shown video? Request copy. Licensing: make a report Cell phones: time of phone calls and voicemail Security video: were they shown video? Request copy. Licensing: make a report

Healthcare: parents should treat child like a child who is injured, not have a lawyer manage his or her care.

Follow healthcare advice, or get another one. Have them write down what they recall right away. He with notes wins. Follow healthcare advice, or get another one. Have them write down what they recall right away. He with notes wins.

Evaluating sources of recovery Evaluating sources of recovery

Daycare:

• Is it insured?
• Is it in commercial space
• r private home?
• If in-home, is there a

rider for business activity/daycare – or is it excluded?

• If no coverage, the

daycare operator may still be collectible (spouse works/owns home) Daycare:

• Is it insured?
• Is it in commercial space
• r private home?
• If in-home, is there a

rider for business activity/daycare – or is it excluded?

• If no coverage, the

daycare operator may still be collectible (spouse works/owns home)

Mandated reporters:

• Look for preceding

signs of child abuse: bruises, history of child being hit…Each state has list of mandated

• reporters. May be

more collectible than daycare provider. Mandated reporters:

• Look for preceding

signs of child abuse: bruises, history of child being hit…Each state has list of mandated

• reporters. May be

more collectible than daycare provider.

Mandated Reporters (cont):

• If crime, or potential

crime, and daycare provider denies doing it, consider alleging daycare failed to prevent putative criminal from coming onto

• premises. No need to

prove who did it, just that it happened at daycare.

• If baby shaken (i.e.

intentional act exclusion), consider negligent resuscitation

Mandated Reporters (cont):

• If crime, or potential

crime, and daycare provider denies doing it, consider alleging daycare failed to prevent putative criminal from coming onto

• premises. No need to

prove who did it, just that it happened at daycare.

• If baby shaken (i.e.

intentional act exclusion), consider negligent resuscitation

Child perpetrator/tortfeasor:

• If over 5, his or her

homeowners insurance may cover them. Failure to use reasonable care for child of that age (i.e. did he or she behave as instructed) Child perpetrator/tortfeasor:

• If over 5, his or her

homeowners insurance may cover them. Failure to use reasonable care for child of that age (i.e. did he or she behave as instructed)

Perpetrator may have own source of revenue:

• Family or personal

money (even out of portion of perpetrator’s

• wn structured

settlement) Perpetrator may have own source of revenue:

• Family or personal

money (even out of portion of perpetrator’s

• wn structured

settlement)

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 Liability

Negligent Acts

• Lack of Supervision

‐ Child on child injuries (physical/sexual touching) ‐ 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/sexual touching) ‐ 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 Liability

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

• 1. A duty of care
• 2. Breach of such duty
• 3. Causation
• 4. Injury or loss

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

• 1. A duty of care
• 2. Breach of such duty
• 3. Causation
• 4. 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 need more than an injury to establish a duty. ‐ A day care is not a child’s insurer: “A day care provider does not insure the safety of the child and has no duty to foresee and guard against every possible hazard.” Persinger v. Step by Step, 560 S.E.2d 333 (2002). ‐ The duty of a child care provider is to exercise reasonable care for the safety of the child gauged by the 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 need more than an injury to establish a duty. ‐ A day care is not a child’s insurer: “A day care provider does not insure the safety of the child and has no duty to foresee and guard against every possible hazard.” Persinger v. Step by Step, 560 S.E.2d 333 (2002). ‐ The duty of a child care provider is to exercise reasonable care for the safety of the child gauged by the 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 perils that they may encounter. Thurman v. Applebrook Country Daycare, 604 S.E.2d 832 (2004). ‐ So the younger the child, the more care that’s required. ‐ Did the day care exercise a measure of caution which a reasonably prudent person would have exercised 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 perils that they may encounter. Thurman v. Applebrook Country Daycare, 604 S.E.2d 832 (2004). ‐ So the younger the child, the more care that’s required. ‐ Did the day care exercise a measure of caution which a reasonably prudent person would have exercised in the same or similar circumstances?

Proving Liability

Duty: statutes, regulations, and rules ‐ Most jurisdictions promulgate statutes, regulations, or rules that day cares must follow (these are essentially duties owed to children). ‐ Most jurisdiction have a state agency which will investigate possible violations of these

• rules. If the state agency finds a violation, it

makes your job much easier. ‐ These state agencies will investigate and make findings as to whether any statutes, regulations, or rules were violated. ‐ There are many different rules day cares must follow!! Duty: statutes, regulations, and rules ‐ Most jurisdictions promulgate statutes, regulations, or rules that day cares must follow (these are essentially duties owed to children). ‐ Most jurisdiction have a state agency which will investigate possible violations of these

• rules. If the state agency finds a violation, it

makes your job much easier. ‐ These state agencies will investigate and make findings as to whether any statutes, regulations, or rules were violated. ‐ There are many different rules day cares must follow!!

Proving Liability

One example is a broad supervision rule in Georgia:

“Children shall be supervised at all times… The person supervising in the child care area must be alert, able to respond promptly to the needs and actions of the children being supervised…” Ga.

• Comp. R. & Regs. R. 591-1-1-.32

One example is a broad supervision rule in Georgia:

“Children shall be supervised at all times… The person supervising in the child care area must be alert, able to respond promptly to the needs and actions of the children being supervised…” Ga.

• Comp. R. & Regs. R. 591-1-1-.32

Negligent Acts

Breach of Duty

A breach of duty can be difficult to establish due to a child’s young age. ‐ Contextual details missing (time, location, circumstances surrounding the event) ‐ Changing/evolving story You may not get the whole story from the day care. ‐ The employee/day care may not self report the incident ‐ Evidence may be destroyed ‐ The employee may be quickly fired and refuse to cooperate

Breach of Duty

A breach of duty can be difficult to establish due to a child’s young age. ‐ Contextual details missing (time, location, circumstances surrounding the event) ‐ Changing/evolving story You may not get the whole story from the day care. ‐ The employee/day care may not self report the incident ‐ Evidence may be destroyed ‐ The employee may be quickly fired and refuse to cooperate

Proving Liability

Breach of Duty

Look to the state agency and police reports to fill in the gaps. ‐ The state agency overseeing day cares will typically do a thorough investigation (this may give you leads on witnesses and evidence you didn’t know existed). ‐ You may need to contact the state agency to start an investigation. Consider hiring a forensic interviewer/counselor to interview child. ‐ Parents generally make for bad interviewers.

Breach of Duty

Look to the state agency and police reports to fill in the gaps. ‐ The state agency overseeing day cares will typically do a thorough investigation (this may give you leads on witnesses and evidence you didn’t know existed). ‐ You may need to contact the state agency to start an investigation. Consider hiring a forensic interviewer/counselor to interview child. ‐ Parents generally make for bad interviewers.

Proving Liability

Causation

The breach must be the proximate cause

• f the injury.

Example: A student is inappropriately touched by another student in the classroom for a very short period of time. Would the event have happened had the teacher been properly supervising? How long it lasted might be key.

Causation

The breach must be the proximate cause

• f the injury.

Example: A student is inappropriately touched by another student in the classroom for a very short period of time. Would the event have happened had the teacher been properly supervising? How long it lasted might be key.

Proving Liability

Foreseeability

“Negligence consists of exposing someone to

whom 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 prevent the harm that occurred?

Foreseeability

“Negligence consists of exposing someone to

whom 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 prevent the harm that occurred?

Valuing claims

Valuing Claims 1) Policy limits: usually the cap, usually not an issue in smaller cases. 2) If less collectible tortfeasor, what is your joint and several law? If

• nly economic damages,

then make sure you have an economic case. Valuing Claims 1) Policy limits: usually the cap, usually not an issue in smaller cases. 2) If less collectible tortfeasor, what is your joint and several law? If

• nly economic damages,

then make sure you have an economic case.

Valuing Claims (cont) 3) Private defendant, no insurance – can still work

• ut

4) Costs of defense: private (big deal) v insured (not big deal). 5) Costs of litigation vs. value of smaller injury – could net more now than later Valuing Claims (cont) 3) Private defendant, no insurance – can still work

• ut

4) Costs of defense: private (big deal) v insured (not big deal). 5) Costs of litigation vs. value of smaller injury – could net more now than later

Valuing Claims (cont) 6) Basics: scar revision, attendant care; life care planning, liens (Ahlborn) 7) Worth it to take it? Become part of bad memory or the path forward. 8) Refer it Valuing Claims (cont) 6) Basics: scar revision, attendant care; life care planning, liens (Ahlborn) 7) Worth it to take it? Become part of bad memory or the path forward. 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 may take several months)

• Investigative reports from prior

investigations (establish a pattern)

Official Documentation

• Police report
• Final investigative report from the state

agency overseeing day cares (this may take several months)

• Investigative reports from prior

investigations (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 Keane Keane Law Firm ckeane@keanelaw.com Jess Johnson Pate & Johnson jess@patejohnson.com Christopher Keane Keane Law Firm ckeane@keanelaw.com Jess Johnson Pate & Johnson jess@patejohnson.com