A nursery school or day-care center is not primarily designed to insure of the safety of every child in attendance. However, it does owe them a high degree of care with respect to the ages of the children, the activities they can engage in, the employee’s ability to foresee and avoid perils, and other circumstances.

Indeed, courts have held that preschool nurseries are primarily intended to provide supervision. Thus, the duty owed by nurseries and other child care facilities is substantially different from that owed by schools whose primary function is education.

Can a Childcare Facility Be Held Liable for Injuries to Children?

Yes. Depending on the specific facts and circumstances, a childcare facility may be liable for injuries to children under their care. Generally, courts use three different theories to hold childcare facilities liable, including:


A breach of the childcare facility’s duty to the children which causes injury may result in the facility being liable for negligence. For example, assume a young girl is hit in the face by a baseball bat at summer camp. Her and her parents may be able to recover from the summer camp for her injuries, depending on the level of care counselors were exercising.

Continuing the example, assume one counselor was supervising 10 to 15 children when he noticed one boy pick up a baseball bat. The boy was practicing swinging the bat when he struck the girl who was walking behind him, looking down at a cup of water she was carrying. Here, the court will likely hold the summer camp liable for negligence, stating that supervision was inadequate under the circumstances.

Negligence Per Se

Negligence per se means an act is inherently negligent because a law was broken in some manner. In many jurisdictions, there are statutes which regulate childcare facilities. Thus, if a child is being watched by a childcare facility, is injured, and a law was broken, they may be liable under a theory of negligence per se. For example, a day care center who is in violation of a statute requiring a certain ratio of staff members to children may be liable for any injuries that result as a consequence of violating that law.

Res Ipsa Loquitur

Res Ipsa Loquitur is Latin for "the thing speaks for itself." It is used to describe a legal theory that harm would ordinarily not occur without someone’s negligence. Courts have applied res ipsa loquitur in childcare injuries, reasoning that the child would not be injured unless the facility was negligent. 

For example, assume a young boy is a nursery school  when he suffers a concussion and nerve damage. The child’s mother dropped the child off at the school, and when she returned to pick him up, she was told the child had an accident and "wet his pants." When she returned home, she found the child had crossed eyes and a sizeable bump on his head. The court will likely apply res ipsa loquitur, although the cause of the injury was a mystery. The reason res ipsa loquitur is appropriate is because there is a reasonable inference that the defendant was negligent and that the negligence caused the injury.

Should I Consult An Attorney About The Liability Of A Childcare Facility?

If your child has been injured at a childcare facility, a personal injury attorney can help.  A personal injury attorney will deal with the childcare facility to assert your rights, and help to ensure that your child can recover damages for their injuries.