Hobbsr: Are Day Care Liability Waivers Enforceable?

Monday, July 11, 2016

Are Day Care Liability Waivers Enforceable?

You need to work, so you are considering putting your kid in day care. But there’s something a little disconcerting that you see everywhere.

Day care centers all demand that parents sign liability waivers, usually including an indemnity clause saying they are not responsible for children’s injuries while in their care. Should you sign? Does this really mean the caregiver is not liable? What are other parents doing?

Day Care Negligence

Many parents do sign liability waivers when they enroll their child in day care. It is likely a condition of enrollment, and there are certain advantages to children. For example, part of the liability waiver will likely include a clause on emergency care, allowing a day care center to call an ambulance if necessary.

But there are provisions that are quite scary, like those disclaiming any liability for injuries that occur while the kid is in the day care center’s care. Parents sign these because they have to, even if they are a kind of bluff. A day care center cannot waive liability for injury or illness resulting from its negligence and parents cannot waive a child’s right to sue. Most courts invalidate these clauses when they are presented as a defense to a negligence claim against a day care center for fear that recognizing them would encourage negligence.

What that means is that you can sign on the dotted line, but rest assured that if your kid is hurt, you may recover damages. But of course you will have to prove that the day care center’s negligence is what caused the injury.

Day Care Negligence

A day care center owes a duty of care to its attendees, and the first element of a negligence case is proving duty. Next, a plaintiff must show the duty was breached, meaning the center fellow below the standard of care that is reasonable in similar circumstances.

To prove causation, that the center is responsible for the injury, a plaintiff must show that the center was the actual and proximate cause of injury and that this injury resulted in harm, or compensable damages. Finally, a plaintiff must prove the damages, or the compensation needed based on the injury.

It’s never easy to prove a case. But a liability waiver should not deter you from suing a day care center where your kid was injured.

Talk to a Lawyer

If your child was injured at a day care center or elsewhere, talk to a lawyer. Tell the story. Many attorneys consult for free or a minimal fee and will be happy to assess your case.

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