Child Care and Tort Liability
| Publication year | 1989 |
| Pages | 1949 |
| Citation | Vol. 10 No. 1989 Pg. 1949 |
1989, October, Pg. 1949. Child Care and Tort Liability
Arecord number of parents in the United States now rely on paid child care providers. One result has been an increase in litigation involving injury to children while in the care of persons other than their parents. This article raises a number of issues concerning the tort liability and avoidance of liability of child care centers. The phrases "child care" and "child care center" are used generically throughout the article to refer to any form of child care by a person other than a parent.
Child care includes small and large child care centers, day care homes, pre-schools, church day care centers, drop-in centers such as the YMCA and babysitters. In Colorado, child care currently falls into three categories:
1. Under Colorado's Child Care Act(fn1) ("CCA"), child care centers in the first category are licensed centers that handle five or more children under age sixteen at any time.
2. The second category of child care center, known as a day care home, is defined in the Minimum Rules and Regulations(fn2) adopted by the Department of Social Services ("DSS"), which administers the CCA. Day care homes subject to licensing operate at least two consecutive seven-hour days on a regular weekly basis and care for fewer children than child care centers handle.
3. Unlicensed or "exempt" child care constitutes a third category. The CCA specifically exempts certain kinds of child care from regulation, including most religious day care centers and temporary drop-in centers.(fn3) However, this category also includes the large number of child care providers that operate without a license and without being legally exempt.
A possible fourth category, employer-sponsored, on-site day care for children of employees, was introduced in Senate Bill 118 and passed by the General Assembly in 1989. However, the legislation was vetoed by Governor Romer in June. Employer-sponsored, on-site day care currently falls into either the first or second category, depending on hours of operation and number of children enrolled.
These categories impose different responsibilities on child care centers. Thus, any claim brought by an injured child should be analyzed in terms of the category of operation of the center involved.
The CCA, which was enacted in 1967 and amended in 1986, requires non-exempt child care centers to have a license. To acquire a license, centers must comply with the DSS rules.
The DSS inspects child care centers to ensure compliance with DSS rules and with Department of Health regulations. This latter task may be delegated to county health departments. Under the 1986 amendments to the CCA, the DSS, with the help of the Colorado Bureau of Investigation, checks whether child care center owners or operators have been convicted of child or sexual abuse or have received a deferred sentence for child or sexual abuse. In the future, the DSS proposes to require background checks on child care center employees as well.
Child care centers also are inspected by other entities. Local fire departments verify compliance with fire protection regulations, and local municipalities inspect facilities for building code violations.
The DSS rules specify educational requirements for child care center operators and employees, daily menus, intake records, admission policies for ill children, sleep equipment and space requirements, personal hygiene for employees, what toys must be available, who may administer medicines, building site limitations and other requirements. Neither the CCA nor the DSS rules require any child care center to acquire liability insurance.
Under the CCA and the DSS rules, various agencies must inspect child care facilities. A failure to inspect prior to licensing, on learning that an unlicensed center is operating or in response to a complaint may lead to liability for these agencies.(fn4) A negligently performed inspection
When an insurer steps beyond the role of providing insurance and performs an inspection of the insured premises, it also may become liable for negligent inspection.(fn5) An attorney handling a child-injury case should...
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