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Presenting a live 90-minute webinar with interactive Q&A
Daycare Injury LitigationAssessing 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 KeaneJess Johnson
March 7, 2017
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Assessing casesBefore you interview anyone, know what yourend
game is:
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Personal paradigmon taking casesPersonal paradigmon taking
cases
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Big cases only?• Death, brain injury,
(partial) amputation,sex abuse
• Failure to providemedicine leading todeath
• Asphyxiation• Shaken baby/Abusive
head trauma• Doors/fingers
Big cases only?• Death, brain injury,
(partial) amputation,sex abuse
• Failure to providemedicine leading todeath
• Asphyxiation• Shaken baby/Abusive
head trauma• Doors/fingers
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Small cases/bigvolume?• broken bones, scars
• Falls from playgroundequipment
• Pushing• Jumping onto child• Falls onto sharp objects
Small cases/bigvolume?• broken bones, scars
• Falls from playgroundequipment
• Pushing• Jumping onto child• Falls onto sharp objects
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Mixedcaseload?Mixedcaseload?
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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 timeyou are called, the trust
has beendecimated.
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 timeyou are called, the trust
has beendecimated.
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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 orworkers) will have
absolutely nothingto do with the civil claim.
- Adjuster in cubicle will not care abouttheir 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 orworkers) will have
absolutely nothingto do with the civil claim.
- Adjuster in cubicle will not care abouttheir broken trust.
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Happiness quotient- In smaller cases, where broken trust is
asbig as in large cases, get parents tounderstand that they will
have to declarevictory on their own terms and to use thecase as way
to demonstrate to child later on(and to themselves now) that they
stood upto correct an injustice, heal and moveforward.
Happiness quotient- In smaller cases, where broken trust is
asbig as in large cases, get parents tounderstand that they will
have to declarevictory on their own terms and to use thecase as way
to demonstrate to child later on(and to themselves now) that they
stood upto correct an injustice, heal and moveforward.
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Interviewing theparents…not theclients.
Interviewing theparents…not theclients.
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Treat the parents like you wouldtreat any parent. Parents wantto
know you care about theirchild. If you don’t care, don’ttake the
case. They werealready mistreated as parentsonce, don’t become part
of thebad memory. Help them pivotforward.
Treat the parents like you wouldtreat any parent. Parents wantto
know you care about theirchild. If you don’t care, don’ttake the
case. They werealready mistreated as parentsonce, don’t become part
of thebad memory. Help them pivotforward.
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Ask… how their child is doing?Every time. While you mayknow the
child will heal up, theparent is not sure so be patientwhile they
catch up to you..Builds trust and eventuallyallows them to resolve
the casein their own mind.
Ask… how their child is doing?Every time. While you mayknow the
child will heal up, theparent is not sure so be patientwhile they
catch up to you..Builds trust and eventuallyallows them to resolve
the casein their own mind.
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Factually, usually not a witnessto the incident – but often
awitness to what they were toldand when. Get them to helpestablish
a timeline.
Factually, usually not a witnessto the incident – but often
awitness to what they were toldand when. Get them to helpestablish
a timeline.
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Cell phones: time of phone callsand voicemail
Security video: were they shownvideo? Request copy.
Licensing: make a report
Cell phones: time of phone callsand voicemail
Security video: were they shownvideo? Request copy.
Licensing: make a report
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Healthcare: parents should treatchild like a child who is
injured,not have a lawyer manage his orher care.
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Follow healthcare advice, or getanother one.
Have them write down whatthey recall right away. He withnotes
wins.
Follow healthcare advice, or getanother one.
Have them write down whatthey recall right away. He withnotes
wins.
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Evaluating sources ofrecoveryEvaluating sources ofrecovery
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Daycare:- Is it insured?- Is it in commercial space
or private home?- If in-home, is there a
rider for businessactivity/daycare – or is itexcluded?
- If no coverage, thedaycare operator maystill be
collectible(spouse works/ownshome)
Daycare:- Is it insured?- Is it in commercial space
or private home?- If in-home, is there a
rider for businessactivity/daycare – or is itexcluded?
- If no coverage, thedaycare operator maystill be
collectible(spouse works/ownshome)
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Mandated reporters:- Look for preceding
signs of child abuse:bruises, history of childbeing hit…Each
statehas list of mandatedreporters. May bemore collectible
thandaycare provider.
Mandated reporters:- Look for preceding
signs of child abuse:bruises, history of childbeing hit…Each
statehas list of mandatedreporters. May bemore collectible
thandaycare provider.
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Mandated Reporters (cont):- If crime, or potential
crime, and daycareprovider denies doing it,consider alleging
daycarefailed to prevent putativecriminal from coming ontopremises.
No need toprove who did it, just thatit happened at daycare.
- If baby shaken (i.e.intentional act exclusion),consider
negligentresuscitation
Mandated Reporters (cont):- If crime, or potential
crime, and daycareprovider denies doing it,consider alleging
daycarefailed to prevent putativecriminal from coming ontopremises.
No need toprove who did it, just thatit happened at daycare.
- If baby shaken (i.e.intentional act exclusion),consider
negligentresuscitation
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Childperpetrator/tortfeasor:- If over 5, his or her
homeowners insurancemay cover them.Failure to usereasonable care
forchild of that age (i.e.did he or she behave asinstructed)
Childperpetrator/tortfeasor:- If over 5, his or her
homeowners insurancemay cover them.Failure to usereasonable care
forchild of that age (i.e.did he or she behave asinstructed)
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Perpetrator may have ownsource of revenue:- Family or
personal
money (even out ofportion of perpetrator’sown
structuredsettlement)
Perpetrator may have ownsource of revenue:- Family or
personal
money (even out ofportion of perpetrator’sown
structuredsettlement)
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Parents:- State statutes for
recovery against parents:medical bills
Parents:- State statutes for
recovery against parents:medical bills
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Homeowners- May cover “med-pay”,
even if no fault.
Consider pro bono
Homeowners- May cover “med-pay”,
even if no fault.
Consider pro bono
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Proving Liability
What kind of tort?‐ Intentional acts v. negligent acts
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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
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Proving LiabilityNegligent Acts• Lack of Supervision
‐ Child on child injuries (physical/sexualtouching)
‐ 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/sexualtouching)
‐ 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.)
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Proving LiabilityTo establish negligence against the operator of
a daycare facility, a plaintiff must generally show:
1. A duty of care2. Breach of such duty3. Causation4. Injury or
loss
To establish negligence against the operator of a daycare
facility, a plaintiff must generally show:
1. A duty of care2. Breach of such duty3. Causation4. Injury or
loss
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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 needmore than an
injury to establish a duty.
‐ A day care is not a child’s insurer: “A day careprovider does
not insure the safety of the child andhas no duty to foresee and
guard against everypossible hazard.” Persinger v. Step by Step,
560S.E.2d 333 (2002).
‐ The duty of a child care provider is to exercisereasonable
care for the safety of the child gauged bythe 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 needmore than an
injury to establish a duty.
‐ A day care is not a child’s insurer: “A day careprovider does
not insure the safety of the child andhas no duty to foresee and
guard against everypossible hazard.” Persinger v. Step by Step,
560S.E.2d 333 (2002).
‐ The duty of a child care provider is to exercisereasonable
care for the safety of the child gauged bythe standard of the
average “reasonable parent.”Laite v. Baxter, 191 S.E.2d 531
(1972).
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Proving Liability
Duty: reasonable care‐ Kids are different.‐ Children are
entitled to care proportioned to
their inability to foresee and avoid the perilsthat they may
encounter. Thurman v.Applebrook Country Daycare, 604 S.E.2d
832(2004).
‐ So the younger the child, the more care that’srequired.
‐ Did the day care exercise a measure of cautionwhich a
reasonably prudent person would haveexercised 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 perilsthat they may
encounter. Thurman v.Applebrook Country Daycare, 604 S.E.2d
832(2004).
‐ So the younger the child, the more care that’srequired.
‐ Did the day care exercise a measure of cautionwhich a
reasonably prudent person would haveexercised in the same or
similar circumstances?
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Proving Liability
Duty: statutes, regulations, and rules‐ Most jurisdictions
promulgate statutes,
regulations, or rules that day cares mustfollow (these are
essentially duties owed tochildren).
‐ Most jurisdiction have a state agency whichwill investigate
possible violations of theserules. If the state agency finds a
violation, itmakes your job much easier.
‐ These state agencies will investigate andmake findings as to
whether any statutes,regulations, or rules were violated.
‐ There are many different rules day cares mustfollow!!
Duty: statutes, regulations, and rules‐ Most jurisdictions
promulgate statutes,
regulations, or rules that day cares mustfollow (these are
essentially duties owed tochildren).
‐ Most jurisdiction have a state agency whichwill investigate
possible violations of theserules. If the state agency finds a
violation, itmakes your job much easier.
‐ These state agencies will investigate andmake findings as to
whether any statutes,regulations, or rules were violated.
‐ There are many different rules day cares mustfollow!!
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Proving LiabilityOne example is a broad supervision rule
inGeorgia:
“Children shall be supervised at all times… Theperson
supervising in the child care area must bealert, able to respond
promptly to the needs andactions of the children being supervised…”
Ga.Comp. R. & Regs. R. 591-1-1-.32
One example is a broad supervision rule inGeorgia:
“Children shall be supervised at all times… Theperson
supervising in the child care area must bealert, able to respond
promptly to the needs andactions of the children being supervised…”
Ga.Comp. R. & Regs. R. 591-1-1-.32
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Negligent Acts
Breach of DutyA breach of duty can be difficult to establish due
toa child’s young age.
‐ Contextual details missing (time, location,circumstances
surrounding the event)
‐ Changing/evolving storyYou may not get the whole story from
the day care.
‐ The employee/day care may not self reportthe incident
‐ Evidence may be destroyed‐ The employee may be quickly fired
and refuse
to cooperate
Breach of DutyA breach of duty can be difficult to establish due
toa child’s young age.
‐ Contextual details missing (time, location,circumstances
surrounding the event)
‐ Changing/evolving storyYou may not get the whole story from
the day care.
‐ The employee/day care may not self reportthe incident
‐ Evidence may be destroyed‐ The employee may be quickly fired
and refuse
to cooperate
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Proving Liability
Breach of DutyLook to the state agency and police reports to
fill inthe gaps.
‐ The state agency overseeing day cares willtypically do a
thorough investigation (this maygive you leads on witnesses and
evidence youdidn’t know existed).
‐ You may need to contact the state agency tostart an
investigation.
Consider hiring a forensic interviewer/counselor tointerview
child.
‐ Parents generally make for bad interviewers.
Breach of DutyLook to the state agency and police reports to
fill inthe gaps.
‐ The state agency overseeing day cares willtypically do a
thorough investigation (this maygive you leads on witnesses and
evidence youdidn’t know existed).
‐ You may need to contact the state agency tostart an
investigation.
Consider hiring a forensic interviewer/counselor tointerview
child.
‐ Parents generally make for bad interviewers.
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Proving Liability
CausationThe breach must be the proximate causeof the
injury.Example: A student is inappropriatelytouched by another
student in theclassroom for a very short period of time.Would the
event have happened had theteacher been properly supervising?
Howlong it lasted might be key.
CausationThe breach must be the proximate causeof the
injury.Example: A student is inappropriatelytouched by another
student in theclassroom for a very short period of time.Would the
event have happened had theteacher been properly supervising?
Howlong it lasted might be key.
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Proving LiabilityForeseeability
“Negligence consists of exposing someone towhom 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 preventthe harm that occurred?
Foreseeability“Negligence consists of exposing someone towhom 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 preventthe
harm that occurred?
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Valuing claims
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Valuing Claims1) Policy limits: usually the
cap, usually not an issuein smaller cases.
2) If less collectibletortfeasor, what is yourjoint and several
law? Ifonly economic damages,then make sure you havean economic
case.
Valuing Claims1) Policy limits: usually the
cap, usually not an issuein smaller cases.
2) If less collectibletortfeasor, what is yourjoint and several
law? Ifonly economic damages,then make sure you havean economic
case.
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Valuing Claims (cont)3) Private defendant, no
insurance – can still workout
4) Costs of defense: private(big deal) v insured (notbig
deal).
5) Costs of litigation vs.value of smaller injury –could net
more nowthan later
Valuing Claims (cont)3) Private defendant, no
insurance – can still workout
4) Costs of defense: private(big deal) v insured (notbig
deal).
5) Costs of litigation vs.value of smaller injury –could net
more nowthan later
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Valuing Claims (cont)6) Basics: scar revision,attendant care;
life careplanning, liens (Ahlborn)
7) Worth it to take it?Become part of badmemory or the
pathforward.
8) Refer it
Valuing Claims (cont)6) Basics: scar revision,attendant care;
life careplanning, liens (Ahlborn)
7) Worth it to take it?Become part of badmemory or the
pathforward.
8) Refer it
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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.
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Negotiating Settlements
Official Documentation- Police report- Final investigative
report from the state
agency overseeing day cares (this maytake several months)
- Investigative reports from priorinvestigations (establish a
pattern)
Official Documentation- Police report- Final investigative
report from the state
agency overseeing day cares (this maytake several months)
- Investigative reports from priorinvestigations (establish a
pattern)
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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?
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Negotiating Settlements
Photographs- Photograph the injury over time- Show the
family/house/dog
Photographs- Photograph the injury over time- Show the
family/house/dog
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Thank You
Christopher KeaneKeane Law [email protected]
Jess JohnsonPate & [email protected]
Christopher KeaneKeane Law [email protected]
Jess JohnsonPate & [email protected]