Trial Magazine

Day cares¹ are a lifeline for millions of working parents, and the shortage of quality childcare has created a more than $47 billion industry² and an explosion of facilities ranging from in-home day cares to national chains that earn $300 million³ per year.

Despite ever-increasing demand, high turnover and worker shortages plague day cares, and standards for hiring, training, and supervising workers vary widely.⁴ As a result, thousands of children suffer from serious abuse in day cares each year.⁵

Day care abuse takes many forms, and a day care employee or owner is the most common perpetrator. Holding a day care liable for child abuse is not easy, primarily because the main witness—the child-victim—is too young to testify. Additionally, establishing liability is tough because courts are loath to find an employer liable for the intentional acts of its employee.⁶ Here are some strategies for tackling these problems and tips to avoid pitfalls unique to day care abuse cases.

Proving Your Case Without a Competent Witness

Most day cares serve children ages six or younger. Courts rarely permit children that young to testify⁷, and, when they do, the courts allow the children to offer only corroborating evidence.⁸ Moreover, the child’s out-of-court abuse reports are admissible only if other evidence corroborates them.⁹

Expert witnesses. Without victim testimony, plaintiff attorneys must rely on expert witnesses to take statements, observations, or other evidence they glean from interviews with the child-victim to create a narrative that other circumstantial evidence supports. For instance, when a young child states that he was cut with a razor, a medical expert could testify that the child’s wound was consistent with a cut from a razor of the type the child claims was used. In physical abuse cases, medical experts review medical records, pictures, and the child-victim’s statements to determine whether day care staff—and not the child’s parents—inflicted the injuries and if the injuries are consistent with abuse, an accident, or discipline.¹⁰

In sexual or psychological abuse cases, forensic psychiatrists and other experts can testify that the child’s statements, behaviors, and psychological trauma are consistent with the alleged abuse, based on authoritative research and the experts’ training and experience.¹¹ Most commonly, psychologists or other such experts are called to testify that a young child’s behavior—such as expressing sexual themes in artwork and play or exhibiting sexual knowledge beyond the child’s developmental age is consistent with child sex abuse.

The child’s statement. Preserving the victim’s spontaneous, unrehearsed statements about the abuse is crucial but difficult. By the time you meet the child, their parents (at least) will have questioned them about the abuse—probably extensively. In addition, with mandatory reporting laws,¹² mandatory reporters such as physicians, therapists, teachers, or other professionals who were told about the abuse would have likely reported it to child protective services (CPS).¹³

CPS investigators are social workers who lack training in forensically interviewing and examining traumatized children. CPS interviews can hurt your case because untrained interviewers can consciously and unconsciously influence the child’s statement.¹⁴

To the extent that CPS has not already interviewed the child, insist that any interview or examination take place at a child-advocacy center (CAC). CACs are independent nonprofit agencies that work with law enforcement, prosecutors, and CPS to assist with child abuse investigations.¹⁵ CACs are designed to forensically document evidence of child abuse in a child-friendly environment.¹⁶ CAC staff are trained to interview, examine, and observe victims in an objective, non-suggestive manner.¹⁷

Getting your client evaluated at a CAC is tricky because obtaining an evaluation generally requires a law enforcement referral, which CPS will try to block. Your local CAC can help you determine your client’s eligibility for an evaluation and, if so, the best way to make that happen.¹⁸ In many cases, involving a local victim-advocacy organization can help convince law enforcement to take the abuse allegation more seriously and to refer your client to a CAC. Get a CAC evaluation even if CPS has already interviewed the child—and even if the abuse is not recent.

If, despite all this, you are not able to arrange for a CAC evaluation, consider retaining a forensic psychiatrist with expertise and clinical experience in treating young children to conduct a forensic interview or evaluation. The evaluation will likely contain diagnoses and a treatment plan that life care planners and other damages experts can use to demonstrate that any past treatment was related to the abuse—and was necessary and reasonable—and to establish the need for and cost of future treatment.

A forensic medical expert with pediatric training and clinical experience treating young children should document the physical injuries the child suffered. Retaining and having these experts examine your client early will help mitigate any damage the CPS investigation and other events may have caused.

Corroborating evidence. Preserving and collecting other corroborating evidence is also vital. Most day care facilities have video surveillance in every room. Such footage is almost always helpful to at least corroborate aspects of the child-victim’s statement.

Videos may demonstrate, for instance, that the alleged abuser was left alone with the child in violation of regulations requiring two adults to always be present. The footage may also reveal that the alleged perpetrator spends an inordinate amount of time with the child-victim or other children. It can also show that the perpetrator routinely violates professional boundaries by touching the children or putting them on his or her lap. Most facilities keep the footage for only a short time, so send the day care, CPS, and any investigating law enforcement agency (including the CAC) preservation letters immediately upon taking the case.

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Get the day care’s licensing and regulatory files. These files are public information and are generally available for public inspection.

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Another great source of information you should get early is the day care’s licensing and regulatory files. State and local agencies that license and regulate day cares generally maintain files on each licensed day care. The files will contain, among other things, ownership information, insurance information, prior complaint records, and, sometimes, information about prior abuse investigations.

These files are public information and are generally available for public inspection. While state regulatory files may be available online, local files are often maintained in paper form at the appropriate county or city office. To the extent all or some portions of the file are not available for inspection, submit requests under your state or local public information statutes or ordinances.

Experienced investigator. Finally, an experienced investigator can help you identify other potential victims. Consult with friends and colleagues who practice criminal defense, or ask your state trial lawyer organization for recommendations on investigators. Most child abusers abuse more than one child, more than once. An investigator should interview parents, former employees, volunteers, and others who may help identify additional potential victims.

Overcome Bad Law

Vicarious liability under the respondeat superior doctrine is the most logical path to pursue a day care for abuse its employee committed. However, that theory does not apply in most day care abuse cases because vicarious liability under the respondeat superior doctrine holds an employer liable for an employee’s tortious acts only if those acts were committed within the scope of employment.¹⁹ Generally, to fall within the scope of employment, conduct must be at least partially in furtherance of the employer’s interests.²⁰ Because intentionally hurting another person rarely advances an employer’s interests, most intentional torts fall outside the scope of employment.²¹

A few courts have found abuse to be within the scope of employment where the abuse was “incidental to,” and at least partially in furtherance of, the employer’s interests.²² For instance, an employee’s repeated slamming of a child’s head against a shelf, causing traumatic brain injury, was potentially within the scope of employment because the employee was at least arguably serving the day care by trying to silence a disruptive child.²³ Contrastingly, sexual abuse is almost always outside the scope of day care staff’s employment.²⁴

Given the limits on vicarious liability, plaintiffs are left with negligence claims based on the day care’s own acts and omissions. Day cares are subject to the highest tort duty—in loco parentis—because their primary function is to supervise children.²⁵ The duty is heightened for infants and toddlers, who require constant supervision and care.²⁶ Day cares must generally “exercise the degree of reasonable care that a parent of ordinary prudence would have exercised under comparable circumstances.”²⁷

The primary theories for establishing the day care’s direct negligence are negligent hiring or supervision. They are two distinct causes of action, but the claims are highly intertwined. Both claims require evidence that the employer was, or should have been, aware of red flags concerning the employee’s conduct that tagged the employee as a threat to children and that a reasonable employer would have mitigated.²⁸

The main difference between the claims is the timing of the employer’s knowledge. Negligent hiring focuses on the day care’s failure to conduct an adequate background investigation before hiring, and negligent supervision is based on what the employer knew about the employee’s conduct while they were employed.²⁹ Evidence that the day care was on actual or constructive notice of prior acts of child abuse is generally enough to prevail on these claims.³⁰

Importantly, even if a perpetrator’s coworker observed the abuse but failed to report it to the employer or authorities, a day care is still on constructive notice of abuse committed on its premises.³¹ Further, the day care is on constructive notice of any prior abuse if a reasonable background investigation would have uncovered those acts, regardless of whether the acts were reported to authorities.³² For instance, a facility can be charged with constructive knowledge of an employee’s propensity to commit abuse when that propensity would have been revealed if the facility had checked the employee’s references before hiring.³³

Absent proof of past abuse, courts vary widely on what is required to establish notice. Some jurisdictions hold that an employee’s abuse is foreseeable only if the employer knew or should have known about conduct demonstrating a “propensity” to abuse children.³⁴ Physical abuse cases require evidence of a propensity for violence, while sexual abuse cases require proof of the perpetrator’s sexual attraction to children.³⁵

Other courts require evidence only that the employee’s conduct rendered them “unsuited” to work with children or that, if discovered, would prompt a reasonable employer to investigate and remediate any threat that the conduct posed.³⁶ Examples of such acts include drug or alcohol abuse,³⁷ “habitual carelessness, disposition, and temperament,”³⁸ and inexperience and lack of training.³⁹ Quality investigators can help identify evidence of red flags that are not initially apparent.

The law in this area is evolving, providing ample room for creative lawyering. For instance, child-victim attorneys have pointed to reports of widespread clergy abuse to demonstrate that religious institutions have a higher duty to investigate a clergy candidate’s propensity to be entrusted with caring for children.

Invoking the doctrine of negligence per se can sometimes help plaintiff attorneys avoid the foreseeability issue. Negligence per se is a common law doctrine intended to enforce health and safety regulations by making it easier for plaintiffs to sue for injuries that regulatory violations caused.⁴⁰

To invoke the doctrine, you must demonstrate that the defendant violated a regulation intended to protect the child and caused the type of harm the regulation was designed to prevent.⁴¹ Once you meet these requirements, the plaintiff is deemed to have satisfied the negligence elements of duty and breach and needs to prove only causation.⁴²

You can establish causation with proof that the abuse would not have occurred absent the statutory violation.⁴³ Applying negligence per se in abuse cases relieves plaintiffs of the difficult burden of establishing that the abuse was foreseeable based on what the employer knew or should have known.⁴⁴

But the doctrine applies only in cases involving violations of certain day care regulations, some of which include violation of mandatory reporting laws,⁴⁵ failure to conduct mandated background checks,⁴⁶ and violation of required staff-to-student ratios.⁴⁷ Negligence per se is a constantly changing doctrine, and it is generally worth a shot to bring the claim if you find an appropriate regulatory violation.

Avoid Common Pitfalls

First, determine who is suing and for what. Parents and guardians may generally sue on an injured child’s behalf. They are also entitled to their own damages.⁴⁸

Before filing your case (or even before making the demand), review what damages your jurisdiction allows parents and children to recover and decide what damages you will seek and on whose behalf. This analysis will help you write a clear complaint and will inform your choice of damages experts.

Establishing a parent’s damages for lost wages, emotional distress, past and future medical expenses, and associated economic losses may require adult treatment experts and qualified economists, life care planners, and so on. Contrastingly, establishing the child-victim’s damages requires mental and physical health experts with expertise in working with children.

Second, keep your client’s identity out of the public record. Many jurisdictions require that a minor’s name and identifying information be removed or redacted from public filings.⁴⁹ Because identifying the parent identifies the child, many courts permit plaintiffs to use pseudonyms, which are more protective than using initials, in the complaint and any subsequent filings.⁵⁰ Review all filings by others (including CPS) carefully to make sure they have shielded or removed any identifying information from the public record.

Finally, pay attention to special rules for distribution of settlement and judgment funds to minors. Some jurisdictions require court approval for settlements. In addition, proceeds for damages the child suffered must be placed in a trust until the child reaches the age of majority. A court must approve any withdrawals from the settlement or judgment proceeds. This can come as a shock to parents who expect full access to the proceeds.

Day care abuse cases are challenging, however, few professional endeavors are more worthy than seeking justice for a child. Proper preparation and know-how can go a long way to holding day care facilities liable for injuries its employees cause—and setting children on the path to recovery.

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Steven J. Kelly is a principal at Grant & Eisenhofer in Wilmington, Del., and can be reached at skelly@gelaw.com.

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Notes

1. When used here, “day care” refers to private childcare facilities serving children ages six and younger.
2. See 133 Am. Jur. Proof of Facts 3d 87, §1 (2013).
3. Industry Statistics & Trends, IBIS World, https://www.ibisworld.com/united-states/market-research-reports/day-care-industry/#industrystatisticsandtrends.
4. Dana Goldstein, Why You Can’t Find Child Care: 100,000 Workers are Missing, N.Y. Times, Oct. 13, 2022, https://www.nytimes.com/2022/10/13/us/child-care-worker-shortage.html#:~:text=The%20shortage%20is%20contributing%20to,the%20Bureau%20of%20Labor%20Statistics.
5. See Dept. of Health & Human Servs., Children’s Bureau, Child Maltreatment 2022 Report (2024), https://www.acf.hhs.gov/sites/default/files/documents/cb/cm2022.pdf. “Abuse,” as used here, refers to acts of abuse and neglect.
6. See, e.g., Williams v. Hall, 681 N.E.2d 1037, 1039 (Ill. App. Ct. 1997).
7. At common law, children ages 14 and older were presumed competent to testify, but many states have adopted statutes modifying the presumptive age and requiring courts to apply specific factors to determine whether younger children may testify. See, e.g., 60 A.L.R.4th 369 §2.
8. See, e.g., Tex. Family Code §54.031; Wash. Rev. Code §9A.44.120; N.Y. Family Court Act §1046(a)(vi).
9. See, e.g., Doe v. Broward Cnty. School Bd., 744 So. 2d 1068 ( Fla. Dist. Ct. App. 1999); Trinidad C. v. Augustin L., 92 N.E.3d 475 (Ill. App. Ct. 2017); Ordona v. Campbell, 132 A.D. 3d 1246 (N.Y. App. Div. 2015); Fournier v. Fournier, 738 A.2d 98 (Vt. 1999).
10. See, e.g., Tompkins v. Annie’s Nannies, Inc., 59 S.W.3d 669 (Tenn. Ct. App. 2000).
11. See, e.g., United States v. Bridges, 58 M.J. 540 (C.G. Ct. Crim. App. 2003).
12. See 43 C.J.S. Infants §196 (2024).
13. CPS agencies are referred to variously in different states, such as “Department of Family Services,” “Department of Social Services,” and “Department of Youth and Family Services.” See Children’s Advocacy Centers, Office of Juvenile Justice & Delinquency Prevention, https://www.healthcaretoolbox.org/who-s-who-in-the-child-welfare-system.
14. See, e.g., Com. v. Allen, 665 N.E.2d 105, 108 (Mass. App. 1996). Because CPS deals primarily with parental abuse, it will usually treat parents as suspects until it can rule them out. If there is any chance the parents could have committed the abuse, advise them to consult with a criminal defense lawyer.
15. Id.
16. Id.
17. See id.
18. For a national directory of CACs, see CAC Coverage Maps, Nat. Children’s Alliance, https://www.nationalchildrensalliance.org/cac-coverage-maps/.
19. Baker v. St. Francis Hosp., 126 P.3d 602, 605 (Okla. 2005).
20. Id.
21. Id.
22. Id.
23. Id.
24. See, e.g., Caldwell v. KFC Corp., 958 F. Supp. 962, 970 (D.N.J. 1997).
25. Fowler v. Seaton, 394 P.2d 697, 701 (Cal. 1964).
26. Id.
27. Id.
28. L.M. ex rel. S.M. v. Karlson, 646 N.W.2d 537, 544 (Minn. Ct. App. 2002).
29. Id.
30. Faieta v. World Harvest Church, 891 N.E.2d 370, 389 (Ct. Com. Pl. 2008).
31. See, e.g., Bryant v. Livigni, 619 N.E.2d 550 (Ill. App. Ct. 1993).
32. See T.W. v. City of N.Y., 286 A.D.2d 243, 245 (N.Y. App. Div. 2001).
33. Sandoval v. Leake & Watts Services, Inc., 192 A.D.3d 91, 99 (N.Y. App. Div. 2020).
34. See Peters v. Ashtabula Metro. Hous. Auth., 624 N.E.2d 1088, 1091 (Ohio Ct. App. 1993).
35. See id.
36. Perez v. Pavex Corp., 2002 WL 31500404 (M.D. Fla. 2002).
37. Harvey Freeman & Sons, Inc. v. Stanley, 375 S.E.2d 261 (Ga. Ct. App. 1988).
38. Joyner v. B & P Pest Control, Inc., 853 So. 2d 991, 999 (Ala. Civ. App. 2002).
39. Cutter v. Town of Farmington, 498 A.2d 316 (N.H. 1985).
40. Access your state’s day care regulations at National Database of Child Care Licensing Regulations, Child Care Tech. Assistance Network, https://licensingregulations.acf.hhs.gov/.
41. Id.
42. See Restatement (Third) of Torts §14 cmt. c (Am. Law Inst. 2010).
43. Cf. Carman v. Tinkes, 762 F.3d 565, 567 (7th Cir. 2014).
44. Id.
45. See Roe v. Hesperia Unified Sch. Dist., 300 Cal. Rptr. 3d 340, 355 (Cal. Ct. App. 2022).
46. T.W., 286 A.D.2d 243.
47. See Skillman v. Riverside Baptist Church of Jefferson Par., 171 So. 3d 407, 416 (La. Ct. App. 2015).
48. Schurk v. Christensen, 497 P.2d 937, 940 (Wash. 1972).
49. See, e.g., Fed. R. Civ. P. 5.2(a).
50. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981).