Caregiver Liability for a Child's Injury

Parents and guardians trust schools, caregivers, and others to keep their children safe in a wide variety of situations. Of course, accidents happen, and as any parent will tell you, kids can get hurt no matter how closely they're watched.

But when a child's injury results from "negligent supervision," a caregiver might be liable. This article will explain what's required to prove negligent supervision, who can be held accountable, and the first steps to take if you think you might have a case against a care provider.

What Is Negligent Supervision?

Personal injury law (or "tort" law) is made up of a variety of legal rules (also called "theories") that can be used to hold one person financially responsible for the harm they cause to another. The most commonly applied of these rules is "negligence." When one person fails to act with reasonable care in a given situation, and someone else is hurt as a result, the careless person is said to be negligent.

For example, a negligent driver might run a stop sign, crashing into a car that has the right of way. Or, a negligent store owner might fail to fix a broken shelf, allowing merchandise to fall on a customer. "Negligent supervision" can be thought of as an offshoot of the "theory of negligence."

When a school, organization, employee, or individual accepts responsibility to care for a child, the caregiver must then take all reasonable steps to ensure the child's safety considering the circumstances. If, because of the caregiver's negligence, your child ends up getting hurt, you might have a valid negligent supervision claim.

What You Must Prove in a Negligent Supervision Case

To make your case for negligent supervision, you'll usually need to prove:

• the caregiver had a legal duty to care for and supervise your child
• the caregiver failed to adequately supervise your child ("breaching" the "duty of care")
• your child was injured as a result of the caregiver's action or inaction, and
• the injury was foreseeable.

Let's take a closer look at these elements.

Establishing the Duty of Care

Before you can hold someone accountable for your child's injuries, you must prove that the person or organization that you're suing accepted the responsibility of supervising your child. This is fairly easy to do in most child care scenarios. When a child attends school, when a caregiver is paid for their services, or even when a neighbor offers to babysit, a "duty of care" is created. Sometimes it's in writing through a contract, and sometimes it's through an implied agreement based on conduct.

Proving Breach of the Duty of Care

Next, you must establish that the caregiver "breached" the duty of care, which in plain English means that the caregiver failed to take reasonable steps to supervise your child properly. The standards here—what's "reasonable" and what's not—vary based on several factors, including:

• the age of the child
• the environment, and
• any established organizational protocols.

In proving the pivotal "breach" element of your claim, you might need a qualified expert to first establish the type and level of supervision that was probably required under the circumstances, then show exactly how the caregiver fell short of meeting accepted standards when supervising your child.

Showing Actual Injury

Here, you'll need to show that the caregiver's negligence was the cause of actual injury to your child. Let's say the caregiver's wrongful action was obvious (on a field trip, a teacher doesn't ensure that your child gets back on the bus, leaving them alone for hours). Even if the incompetence was clear and your child was in obvious danger, if your child didn't actually suffer any kind of harm as a result, there's no negligence claim in the eyes of the law.

Different kinds of harm ("damages" in legal terms) in a negligent supervision case can include:

• the cost of medical care necessary to treat injuries or preventable illness resulting from the caregiver's misconduct, and
• compensation for the child's physical and mental "pain and suffering" associated with the injuries or illness.

Damages can also include out-of-pocket losses a parent or guardian had in connection with the child's injury. So, for example, if you missed time at work or had to pay for replacement care, you can probably also claim those financial losses as part of your lawsuit.

In case you're wondering, you probably won't be able to recover damages in a negligent supervision lawsuit for your own emotional distress related to your child's injury. The exception to this "rule" is if you were in the "zone of danger" when the accident happened (meaning the caregiver's negligence also put you at risk of harm) and/or you witnessed your child's injury.

Was the Injury Foreseeable?

In addition to all the elements we've discussed so far, a successful negligent supervision claim means showing that your child's injury was a foreseeable result of the caregiver's wrongful conduct.

It's not enough that someone monitoring your child was negligent if your child's injury wasn't related to the lack of adequate supervision. For example, suppose a ten-year-old child falls and breaks an arm while getting out of the shower. In that case, even a babysitter who was drinking alcohol on the back porch probably won't be liable for negligent supervision, since it's likely reasonable for a ten-year-old to be in the bathroom alone, unsupervised. Here, the injury isn't a foreseeable result of the babysitter's negligence.

In contrast, if a daycare provider allows a child to swim in a pool during a storm and lightning strikes the water, injuring the child, that care provider will probably be liable for the child's harm. Electrocution is a foreseeable outcome of swimming in a pool during a storm. The care provider's reckless decision to allow the child to swim at such a dangerous time was a direct (and foreseeable) cause of the child's injury.

Other examples where a caregiver's negligence will probably be linked to foreseeable injury include:

• a young child injures himself with an unsecured loaded gun
• children find matches within easy reach and start a fire
• a child drinks bleach stored in an unsecured kitchen
• a child with violent tendencies is allowed to play alone with a younger child and assaults the smaller child, and
• a child left alone outside is kidnapped.

Who Can Be Held Accountable for a Child's Injury?

Anyone who agrees to care for your child in your absence can be held responsible for negligent supervision, including:

• teachers
• daycare centers
• babysitters
• churches
• schools and school districts
• camp counselors
• youth organizations
• sports teams, and
• nannies.

It's important to note that liability for negligent supervision can come at both the individual and organizational levels. So if an employee of a youth organization is liable for negligent supervision, the organization itself will likely also be on the legal hook for the employee's negligence. Learn more about business versus employee liability for injuries.

What Level of Supervision Does a Caregiver Owe?

Child supervision is not a "one size fits all" proposition. Every care scenario is unique, and what's appropriate depends on a variety of factors, but a few general standards often apply:

• Younger children require more supervision than older children.
• Children at a daycare near a pool or a busy road will need stricter monitoring than children in a more controlled environment.
• A child with a physical or mental disability probably needs a heightened level of supervision.
• Children with behavioral challenges (like ADHD and similar disorders) will require closer monitoring.
• Watching a larger number of children requires more intensive supervision, and "reasonable" care might require additional supervisors.

Establishing Appropriate Supervision Levels

As touched on above, your negligent supervision case might be strengthened by the testimony of a qualified expert who can discuss commonly-accepted standards and practices in the relevant childcare field (especially if your case involves a licensed care facility or provider). This kind of witness can also provide an expert opinion on exactly how the provider fell short in your case.

Child-to-Caregiver Ratio

One of the most common causes of negligent supervision is a "child-to-caregiver ratio" that's out of balance—failing to provide enough caregivers to handle the number of children being supervised. Organizations (like schools and daycares) that monitor large groups of children have a duty not to take on more children than they can handle.

If an organization accepts more children than it can responsibly provide care for, and a child is hurt due to a lack of supervision, that organization can be held legally responsible.

Holding a Negligent Caregiver Responsible

When you leave your child in someone else's care, whether at school, as part of a sport or other activity, or with a babysitter, you expect your child to be kept safe. Accidents happen even under the most vigilant attention. But if your child is injured due to a caregiver's negligence, you might want to discuss your situation with a lawyer.

A negligent supervision lawsuit isn't usually the kind of legal matter you want to try handling on your own. The challenges of proving your case (including finding the right expert witness) and negotiating a settlement (all while preparing for trial) mean having a legal professional on your side is the best way to ensure a fair result. Learn more about how a personal injury lawyer can help and get tips on finding the right lawyer for you and your case.