Asked 4 months ago - Memphis, TN
FlagMy 5 yr old daughter was at daycare sitting on the floor playing when two bigger boys were wrestling, they fell on her and broke her arm. Her writing arm. She was hospitalized and followed up with ortho. Has to be in cast for 6 wks can.i sue
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Yes. Although accidents can happen, the daycare had a duty to protect your daughter from an unreasonable risk of harm. Allowing two larger boys to wrestle her created this unreasonble risk of harm and they should be held accountable. Most likely they have insurance that will cover the medical payments and there should also be liability insurance that would cover the incidental expenses and any permanent injury and her physical pain and suffering. You should make sure she gets proper medical treatment and follows up with her doctor. Broken bones in children can sometimes cause complications later down the road, but hopefully this will not be the case with your daughter.
The issue is whether the daycare attendant acted reasonable under the circumstances. For instance, if the daycare attendant was not present when the boys broke your daughter's arm, the attendant could be negligent for failure to supervise the boys. If the daycare attendant was present and the boys had a history of wrestling or horseplaying, the daycare attendant could be negligent for choosing to not separate the boys knowing it was forseeable the boys would wrestle or horseply and put other kids like your daugher at risk.
The daycare will most likely have policies and procedures that the attendants must follow. If the attendant was not following a daycare policy or procedure that could have prevented your daughter's injury, that is a good indication that the attendant may have been negligent. Also, if the daycare has a policy or procedure that it did not enforce or inform the attendant of, the daycare may be negligent for failing to follow or enforce it's policy, or train it's attendants.
You most likely have a case. Contact a personal injury attorney in Memphis. Make sure the attorney you hire is a Board Certified Civil Trial Specialist. This certification will assure you of an attorney who has experience handling this or a similar type case.
As some of the lawyers have mentioned, you can sue. The bigger question is can you recover. You left your child in the custody and control of a the day care. They would be acting in your place. This is called in loco parentis. They would have a duty to protect and take care of your child in your absence. The issue then becomes was the day care negligent- in other words did they do something or fail to do something a reasonable parent or caregiver should have done. If so they could be liable.
Beyond this, I would make sure to turn a claim into the daycare. If they have insurance they may want to discuss settlement. Also, they may have medpay coverage - which would reimburse for medical bills.
You should consult an attorney. My daugter practices in Memphis and I can give you her information. There are plenty of lawyers that I am sure would be willing to give you some advise and help.
I have handled many cases involving injuries at daycare centers and would like an opportunity to review your case in greater detail. It sounds like a case to me. The main problem I ofter run into is insurance coverage-- the state of Tennessee requires registered daycare providers to carry insurance, but unfortunately many in Memphis do not. I wish your daughter well and am happy to help.
