Articles Tagged with negligence

https://www.floridachildinjurylawyer.com/files/2017/05/Day-Care-Center-Book-Graphic.001-150x150.jpegIn the State of Florida, parent rely on day care centers to properly care for and supervise their children during time periods in which there are work and personal commitments that require the use of a day care center.  It can be quite disheartening to a parent to work a full day only to pick up a child at a day care center who has been injured, battered, abused, neglected, and / or harmed.  It should be noted that a day care center is not an absolute insurer for the safety of a child.  In other words, a day care center is not automatically liable for damages every single time that a child is injured at a day care center.  In order to establish liability or responsibility on behalf of the day care center, four elements must be established to form the basis of a claim or case against the day care center as follows:

Duty;

Breach of Duty;

Fractured-Arm-150x150In Florida, working parents rely on day care centers to provide supervision and education in a supportive environment. When there are issues or problems with a day care center, parents often question whether there is a case or claim to pursue on behalf of injured child. It should be noted that there may be a legal case or claim to pursue yet the practical considerations, costs, and risks may end up deterring some parents and attorneys from formally pursuing a case.  There are four essential elements of a day care center case as follows: 1 – Duty  2 – Breach of Duty  3 – Causation  4 – Damages
Based in Jacksonville, Florida, David Wolf is a partner in the law firm of Wood, Atter & Wolf.  As a child injury attorney and advocate, David Wolf handles cases throughout the State of Florida.  He is the author of 10 books including books that focus on child injury matters.  He is the author of the book – The ABCs of Child Injury – Legal Rights of the Injured Child – What Every Parent Should Know and the book titled – Florida Day Care Center Injuries – Legal Rights of the Injured Child – Building Blocks of Knowledge for Parents. For over 26 years, David Wolf has represented injured children and their families in the aftermath of an accident or incident causing personal injuries. Read more about the books written by David Wolf at Personal Injury Books and Resources for Clients and Prospective Clients.
In evaluating the potential elements of a case, it is important to consider the particular facts, circumstances, evidence, and law on point.  It should be noted that all four elements must be established to pursue a case on a behalf of an injured child.  From a practical standpoint, the case or claim may not be pursued if the injuries were minimal and do not require much in the way of medical intervention and treatment.  Of course, each claim or case should be evaluated on its own facts and circumstances.

Toy-Graphics-from-Free-Pik-copy-150x150In Orange County, Florida and other areas, day care centers are located on or just off of busy streets, highways, and roads. There have been reports across the nation of vehicles crashing into day care centers.  It would seem like a rare and odd incident but cars crashing into buildings housing schools and day care centers happens far too frequently.  Orange County, Florida is taking measures to help support and encourage day care centers to put barriers in place for the protection of the children, staff, and visitors to the day care center.

A new county ordinance has emerged in Orange County, which requires new daycares to be built with protective barriers. This ordinance follows a tragic occurrence two years ago when four-year old Lily Quintus, died after a vehicle crashed into her daycare. One vehicle hit another causing it to spin out of control and land in a daycare center. Thirteen people, including one adult, were taken to local hospitals with their conditions ranging from minor injuries to critical condition. See More Options in Place to Protect Children at Orange County Day Cares.

Now, newer daycares in the area could be mandated to have barriers in place prior to their opening. The barriers can vary from concrete balls to large, decorative pots. In addition to these barriers, some other precautions day care facilities can take are adding fences. Fences can also play a two-fold role by protecting children from unexpected vehicle accidents as well as from local wanderers. Most day care facilities have playgrounds with children running around outside. For day care facilities near main roads, these fences should be durable enough to protect the children if a car were to hit the fence. Day cares can also create their own rules to make sure children do not cross a certain line or area.

4_ToysIn Florida and other States, day care centers should essentially be safe havens for children. Hard working parents deserve the comfort and peace of mind knowing that a child is safe and protected in a day care center. Unfortunately, far too many children are injured in the very places (day care centers / child care centers) where the children should be otherwise in a safe learning environment. In the aftermath of a child injury at a Florida day care center, a parent is faced with many questions, challenges, and stresses. It is at this time that a Florid Child Injury Lawyer can provide some help, guidance, advice, and, when necessary, legal representation. David Wolf has over 26 years of experience. From this first day on the job as an attorney to the present day, he has spent the duration of his entire legal career to the protection and enforcement of the legal rights of children. He is the author of a number of books including the book titled – Florida Day Care Center Injuries – Legal Rights of the Injured Child – Building Blocks of Knowledge for Parents. This book has chapters on Indoor Facilities, Outdoor Facilities, Playgrounds, Staffing, Emergency Procedures, Incident Reports, and other topics. You can get this book for free at Florida Day Care Center Injuries.

When evaluating a potential day care center case, there are four elements to establish:

1 – Duty;

Florida Pool.001In Florida, it is common to see swimming pools in most neighborhood.  It is somewhat of a luxury to have a swimming pool right there in the back yard.  Swimming pools can add to the aesthetics of the house and surrounding.  Swimming pools can also provide for a great deal of fun and relaxation for adults and children alike.  Unfortunate and tragically, swimming pools are also the site of horrible tragedies that despite laws, common sense, and the general knowledge of other similar tragedies continue to take place.  It has been reported that Florida leads the nations in drowning for children under the age of 5 years old.  Florida has ranked second in drownings the age group of 1 to 14 years old.  Florida’s weather allows for swimming almost year round.  During Spring and Summer months, it is tragically predictable that additional drownings of small children will take place.
Florida has adopted a swimming pool act that applies to all homeowners with a swimming pool.  There must be a barrier that is at least 4 feet high on the outside.  There should not be any gaps, openings, or structural components that would allow a child to crawl or squeeze through the barrier or enclosure.  You can read more about these regulations at Section 515.29, Florida Statutes – Residential Swimming Pool Barrier Requirements.
Can a homeowner be held liable or responsible with a child neighbor or child visitor drowns in the swimming pool in Florida?  The answer to this question like most legal question is “It depends.”  If the homeowner failed to follow the Florida Residential Swimming Pool Act and these violations were the proximate cause of the drowning – then the homeowner may be held liable or responsible for the drowning.

Resort Florida Liability and NegligenceIn Florida and other states, children are welcomed as guests at hotels, motels, and resorts. There are a few vacation areas that are adult guests only; however, the vast majority of these locations are family oriented and set up in many ways to provide for the guests who are children.  Rooms and areas of the resort are constructed and designed just for children.   Because children are welcomed as guests, the hotel / resort staff and management should maintain the facility and activities at the facility in a way to takes into account the safety of children.  It is well know that children lack good safety awareness and judgment.  Because of this, attractive nuisances should be kept at a minimum or at least secured in a way that a child cannot go inside a dangerous area without proper access and adult supervision. Take for example, a swimming pool or aquatics area.   Proper fencing, enclosures, and alarms should be in place so that a child, especially toddlers, do not have access to or wander into the area.  Like other personal injury cases, the following elements must be established:
1. Duty;
2. Breach of Duty;

Kids Wooden Blocks Spelling Mom And Dad As Symbol for Parenthood
In the State of Florida, corporal punishment is prohibited in day care centers.  There are strong public policy and safety reasons for having such a law in place.  It does not matter that the teacher of the day care center was subjected to corporal punishment as part of his or her upbringing.  Furthermore, a parent cannot and should consent to the imposition of corporal punishment at a day care center since it is against the law.   Toddlers and small children should learn by instruction and restrictions that DO NOT involve physical harm, pinching, punching, withholding of food, false imprisonment, or other acts that are neglectful and / or malicious in manner.   Because of this, it is important that Florida day care centers are staffed with trained and caring individuals who have the personality, patience, and maturity to deal with the stresses and demands of the job.  Certainly, it is challenging to be a day care center worker or child care provider.   When the stress intensifies, the day care worker / child care worker should step back and assess or reassess his or her current actions, his or next actions, and the rest of the day.

In Quincy, Florida, it was reported that a day care center worker at All My Children Learning Center is facing criminal charges of battery and cruelty to a child.  It was reported that a day care center teacher pinched a 4 year old child under her care to the point that the child was bruised and needed medical attention.
There may be a number of legal cases that result from corporal punishment cases or incidents including the following:

School House Blue Background.001In Florida, millions of children attend public school.  On most days, the worst thing that happens to a student is in the form of test or homework.  School is school.  However, when a child suffers an injury at school, there are many challenges in dealing with the aftermath of the injuries in the form of medical care, medical bills, pain, suffering, and the stress that is otherwise associated with the personal injuries.  There is a concept in Florida and other states called Sovereign Immunity.   From the literal reading of this term, one may assume that a government entity is immune from being sued or held responsible for the negligent acts of school employees.  The truth is that public schools can and do get sued for negligence when a child suffers personal injuries while under the care and supposed supervision of the school. While Florida Sovereign Immunity laws limit the amount of financial recovery and proscribe the manner, notice, and method for a government entity being sued, there is no immunity per se for negligent acts of school employees in the State of Florida.
The Supreme Court of Florida summarized the general law on point for school negligence cases and claims as follows:
A public school, at least through the high school level, undoubtedly owes a general duty of supervision to the students within its care.  Case law is replete with instances of schools, principals and teachers being required to reasonably fulfill their duty to supervise students.

 No Swimming.001During the past week, I have lectured and written on the issue of negligence, child injuries, and the unfortunate and tragic incident that took place at the Walt Disney World Resort – Orlando where a 2 year old child was attacked and ultimately drowned by an alligator.  It has been reported that there were “No Swimming” signs posted in or near the area.  Some people, who I have spoken to, believe that this fact should then be a bar to recovery if there is a claim or case pursued by the parents of the child who died.  Florida is a state that has adopted a Comparative Fault system for the pursuit and trial of personal injury cases.  In other words, even if an injury victim is comparatively or partially at fault, there can still be a case pursued on behalf of the injury victim and / or the injury victim’s family.   It should also be noted that there are some special laws in place in Florida when a child is injured.  For instance, in the State of Florida, a child under the age of 6 years old cannot be held liable, responsible, or partially at fault as a matter of law.  As such, a 2 year old cannot be comparatively at fault as a matter of law even though there were “No Swimming” signs that were posted.  However, a parent, as a third party of sorts, can be held liable, responsible, or partially at fault if the parent’s actions or inactions contributed in whole or part to the situation or incident taking place.
As for the Disney alligator attack, it has been reported that there were “No Swimming” signs posted.  The family of the 2 year old were from Nebraska and may not have been aware of the presence of alligators throughout the State of Florida in its rivers, lakes, canals, ponds, and lagoons.  Furthermore, the sign read “No Swimming”.   The reason for the posting of the sign could have included any of the following:
*There was no regular lifeguard in the area.

Alligator Warning.001
By David Wolf, Child Injury Lawyer
The State of Florida is a tourist destination for millions of visitors every year. In Florida, we have beaches, resorts, theme parks, water parks, lakes, rivers, ponds, lagoons, and a number of alligators.  Certainly, personal injuries caused by an automobile accident are far more common than personal injuries caused by an alligator attack.  As such, there are literally thousands of appellate cases and rulings associated with personal injuries and automobile accidents.  On the other hand, the laws and appellate cases associated with alligator attacks are quite sparse.  A recent incident at Walt Disney World Orlando made national headline news.  Unfortunately, it focused media attention in the State of Florida and Orlando for a tragedy rather than any kind of celebration.  More importantly and more tragically, a Nebraska family, who innocently was just trying to enjoy the “Magic” of Walt Disney World Orlando, will be heading home with one less family member who was attacked and dragged away by an alligator at the Seven Seas Lagoon.
In Palumbo v. State Game & Fresh Water Fish Commission, 487 So.2d 352 (Fla. 1st D.C.A. 1986), a personal injury victim (Christopher Palumbo) sought the review of a trial court order granting summary judgment for the defendant – the State of Florida. In other words, the trial court threw out the personal injury victim’s case.  The trial court ruled that the evidence, when considered in the light most favorable to the injury victim, was insufficient to support a claim or case for negligence against the State of Florida.  Mr. Palumbo was injured at the University of Florida – Lake Wauberg Recreational Park. He noticed that a boat had capsized.  Mr Palumbo decided to swim out to the boat to help the boaters with a repair.  As he was swimming towards the boat, Mr. Palumbo was attacked by an alligator and he was injured.   Mr. Palumbo later filed a lawsuit against the State of Florida Game and Fresh Water Commission.  The trial court threw out the case and determined that the State of Florida was not required to fence and was not required to otherwise keep alligators out of the area.  The trial court further noted that Mr. Palumbo disregarded warning signs that were posted at the recreational park / facility.  The First District Court of Appeal affirmed the rulings of the trial court.  The First District Court of Appeal noted that the State of Florida did not have a duty to guard the visitor against harm from an alligator unless the alligator was reduced to the possession of the State of Florida or the alligator was not indigenous to the locality.  The First District Court of Appeal further noted that Mr. Palumbo ignored clear warning signs at the facility which, in turn, was the sole proximate cause of his personal injuries.  In addition to “No Swimming” signs posted at the recreational park, there were a variety of signs warning of and referencing the presence of alligators in the area including one sign that read “Unlawful to Feed Alligators” and another sign that read “Don’t Feed or Molest . . . “ with a large graphic of an alligator on it.  In the Palumbo case, there were clear warning signs of alligators in the area which appeared to be an important part of the rulings of the trial court and the appellate court.