Articles Posted in State Specific Articles

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Calendar-300x295The statute of limitations is the time period by which a party or victim needs to take legal action to enforce rights and / or seek financial compensation for the negligence or intentional harm caused by a person, business, and / or government entity.  These time limits are proscribed or set by the legislation in statutes / laws.  The time period for a particular case will depend on the state where the incident took place, the type of action brought, and the parties involved.  Over the years, legislatures have broadened the time limits by which a victim can bring forth a case based on the sexual abuse of the victim.

The statute of limitation in sexual abuse cases has always been a topic of discussion amongst the law community as it is very impactful on the amount of cases received by firms. The topic is also sensitive when understanding the physical and emotional trauma that may impede an individual from filing a lawsuit within a set amount of time after the incident. As time has gone on and many states have become more progressive and understanding of the victim’s position in sexual abuse cases, we have seen a positive trend in the expansion of statutes of limitations in these cases. Just recently, both New York and New Jersey passed laws affecting their statute of limitations. What’s interesting is that they both went about this in different ways. Having realized that many cases of sexual abuse involving a child had been swept under the rug, New York passed the Child Victims Act (CVA) which repeals the statute of limitations on these cases for a period of a year and raises the age limit to 28 in criminal cases and 55 in civil suits . The one-year grace period for cases outside of the statutes of limitations led to 439 cases being filed on just its first day enacted. New Jersey’s approach was to raise the statutes of limitations age to 55 for all child abuse cases or within 7 years of the victim’s realization that the abuse caused harm. The most recent example of a state that is expanding its statute of limitations involving sexual crimes is Texas. Effective September 1st, the statute of limitations has been doubled from 15 to 30 for personal injury claims related to sexual assault.

What is important about the changes being made in these states is that it sends a message to survivors of these heinous crimes that legislators are listening and that they are not going unheard. These changes encourage more people to report actions that may be considered sexual assault/abuse and gives less reasons as to why it should be brushed under the rug. With cases like Jeffrey Epstein’s reaching national media coverage, more and more states are becoming aware that they need to stand up for victims of sexual abuse. As 2019 continues, keep an eye out for more states to follow in the footsteps of New York, New Jersey, and Texas.

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Building-Blocks-300x271When selecting a day care center for a child, there are many options in most communities.  A parent can go with a national chain, a local commercial day care center, or an in-home day care center.  There are also day care centers that are part of schools, non-profit community centers, and churches.  While a day care center license is far from a guarantee that a child will never be harmed, a day care center license does subject the facility to oversight, rules, and regulations.  In addition, liability insurance is required as part of many licensing requirements and / or government programs that provide benefits for children enrolled in a day care center.  When a child is enrolled in an unlicensed – off the grid day care center, there may be a number of safety risks associated with the day care center.

Licensed day care facilities are held to higher standards than those that are unlicensed. Employees are required to take safety tests and learn CPR, which can be the difference between life and death in emergency situations. Licensed day cares are also subject to regular inspections from health or safety boards, so they are likely to be safer environments for children. Unlicensed day care facilities fall under no such scrutiny. Their buildings could be unsafe or unclean, their food could be unhealthy, and they could avoid immunization and handwashing procedures meant to stop the spread of diseases. Most importantly, the staff at an unlicensed day care center could be inadequately trained, and there could be too few staff members to properly watch over all the children in their care. Licensed day care centers are clearly the safer option, so why are some parents still choosing to bring their children to unlicensed day cares?

Part of the issue is simply ignorance. Popular day care search website Care.com advertises unlicensed day care centers the same as licensed ones, so some parents will unwittingly send their children to one. Prompted by an increase in infant deaths, the Tennessee Attorney General’s Office requested that Care.com “stop deceptive childcare providers” from advertising. Five infants died in unlicensed Tennessee day care centers in 2018, so it only makes sense that the DA would want to put an end to them. Parents looking for day care centers for their children should do research to see if the facility is licensed and safe. They can also report any unlicensed day care center they find.

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Building-Blocks-300x271Day care centers should be safe havens. For most children, a typical day at a child care center involves some adventure, snacks, and, yes, that all important nap.  Unfortunately, and tragically for some toddlers, they do not return home at all following a visit to a child care center.  These children do not return home because they died due to the neglect of a day care center.  There is nothing worse for a parent than to bury a child. Nightmares turn into realities.  One such place that tragedies take place is the unlicensed day care center.  In most cases, the unlicensed day care center lacks any appreciable assets or liability insurance.  As such, while a legal action or lawsuit can be filed against the day care center, the collectability of a potential settlement or verdict is highly unlikely to improbable to impossible.  In other words, a strong legal case against a defendant does not mean that there is an economically viable defendant to collect from.

This past July an incident occurred within an unlicensed Tennessee daycare leaving twin babies died. The day care center operator was indicted on two counts of criminally negligent homicide in connection with the death of the two children. The parents of the children filed a wrongful death lawsuit last month seeking compensation of over 50 million dollars. While this seems like a substantial case and demand, a victory in court will most likely be a hollow one since any verdict will probably be uncollectible.  As a general statement, unlicensed day care centers are typically operated by people who cut corners and who do not follow rules.  Furthermore, unlicensed day care centers are usually operated by individuals who have little to no assets to collect upon when there is a sizable verdict against the facility.

Parents should check to see if a day care center is licensed and insured.  While these are not the only factors to consider, if the day care center lacks a license or insurance, it can be a red flag to stay away from that day care center and find one with both liability insurance and licensure in place.  When evaluating a potential case against a day care center, one of the first factors considered is the availabilty and amount of liability insurance.  While a day care center may be legally liable for damages related to personal injuries or death to a child, this does not mean that the day care center owner will ultimately be able to pay out a settlement or verdict rendered in favor of the injured child.

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Video-Surveillance-in-Child-CareIn day care centers across the nation, there are countless acts of abuse and neglect. Some get swept under the rug and never get reported. Children enrolled in a child care center often is an easy target because of age, the inability to defend himself or herself, and the lack of communication skills to alert parents and other adults of the abuse.  Being a child care provider is not easy task.  It requires a person who is alert, physically able, and patient.  Unfortunately, far too many day care centers are run or staffed with unqualified and downright abusive people.

There are plenty of excellent day care centers that do not have video surveillance. On the “wish list” of things to have in a day care center, it is at times helpful to have video surveillance in place.  There are a number of benefits to having video surveillance in place as follows:

Video surveillance is another “set of eyes” supervising the care provided to the children.

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Pool-Safety-240x300With a mobile phone or tablet in our hands most of the day, we now live in a world of almost endless distractions. While technology is wonderful and helpful, it also makes certain activities a bit more dangerous for children.  Whenever a child is in or near water, there is a danger or risk of drowning. Adult supervision is key to the safety of children; however, the presence of an adult in the water area is a bit different than the attention of an adult.  If the adult is physically present in the area of the pool or beach, the physical presence may not mean much if the adult is otherwise engaged in the latest text, tweet, or e-mail on the phone or tablet.  Because of this, it is important to have as top of mind awareness the safety needs of the children.

Nearly 7 out of 10 drownings occur while an adult is present. In a life and death situation, people need to be alert and aware of their surroundings. However, the pool presents a myriad of distractions; if a person is swimming in the pool, they can be surrounded by splashing and other people, which could take their attention away from the child they are supposed to be watching. And, even if the watcher is out of the pool, they could be reading a book or looking at their phone at the precise moment they need to step into action and prevent a drowning. But drownings are almost always preventable; in fact, it is the leading preventable cause of death for children under the age of 5. So what steps must one take in order to prevent a child from drowning?

Among the most important preventions one can take is to have a Designated Watcher whose sole purpose is to keep an eye on the people in the pool. These people are reminded to not look at their phones or other distractions and not leave the pool area unless another person replaces them. While a Watcher is the best preventative measure, there are other choices one can make to improve pool safety. Installing a gate around the pool would keep small children from running into the water and drowning before an adult can intervene. It also helps to have a number of flotation devices, like pool noodles or kickboards, that can be thrown into the pool for a child to grab onto. If these measures are implemented, children will be markedly more safe in the pool this summer.

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In day care centers in Wisconsin and throughout the rest of the nation, there is a population of children at risk for harm when placed in a day care center – infants. Working parents rely upon day care centers to provide a safe haven for their children. These parents do not have much of a choice due to work, financial, and personal constraints of life. A dedicated and professionally trained nanny would be nice but most people cannot afford such a luxury. While most infants placed in day care centers do just fine, others suffer personal injuries and even death in the very environment where the children are supposed to be safe and well cared for.

A recent tragedy in Chippewa Falls, Wisconsin exemplifies the sad reality of these incidents. News reports indicate that a ten-year-old girl attending the same day care as a six-month-old baby boy allegedly abused a child after dropping him while holding him. It was reported that the young girl admitted to stomping on the baby’s head because the baby began to cry after she accidentally dropped the baby. Consequently, the infant sustained serious head trauma and died in the hospital two days later.

At the time of the infant’s tragic death, one adult and two other children were present at the daycare. This raises questions about supervision requirements in childcare facilities and the other safety requirements necessary in such places. The Early Childhood Knowledge and Learning Center recommends active supervision of all children in childcare locations, especially infants. It asserts that an adult should be accessible and supervising all children at all times. In order to achieve this, the Early Childhood Knowledge and Learning Center suggests that childcare facilities plan out staff positioning in rooms, continually scan and count the children in the room, listen for signs of danger, anticipate children’s behavior, and set up an environment conducive to all children remaining in the constant sight of an adult. Childcare centers should also separate children of differing age groups.  See Day Center Supervision Recommendations.

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School-Bus-Safety-300x126In Georgia and other states, there is a daily weekday routine that all drivers should be well aware of – children crossing the street prior to loading a school bus OR after unloading from a school bus. Most buses are a bright yellow color with stop signal arms and flashing lights. Despite the obvious visual presence of a school bus, school bus zones, street signage, and traffic signals, there are still pedestrian accidents and school bus accidents that cause serious injuries to children. Tragically, some children die as a result of these incidents.

A recent accident in Georgia demonstrates the unfortunate reality of these tragedies. News reports indicate that one child died and another child sustained serious injuries when a car hit them as they crossed a road to board their school bus. It was reported that the car hit the two brothers because the driver attempted to pass their idling school bus even though the school bus had its stop signs out.  It was reported that the driver had a suspended license.

Unfortunately, incidents of this nature occur all too frequently. According to statistics released by Stanford Children’s Hospital, twenty-four percent of all school bus injuries occur when students enter or exit a school bus. Additionally, the ten-foot radius around a school bus constitutes a “danger zone.” In the danger zone, children are two times more likely to die than they are likely to die in a traffic accident on the school bus. Thus, it is more dangerous for a child to be near a school bus than it is for them to ride a school bus. See Stanford Children’s Hospital – How Safe Is School Bus Travel. 

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At most restaurants in New York and throughout the country, children are welcome guests. When operating and managing a restaurant, it is important for the management and staff to pay attention to the needs of children as well as any dangers that may be present to a child that may not be a danger to an adult. At a restaurant, the business has a duty to act in a reasonable and safe manner. If there is a dangerous condition on the premises, the staff has a duty to correct the problem or at least put warning signs / cones around the area of danger. When serving food, it is important that the staff act in a reasonable and safe manner. At times, food is spilled, especially hot food, which, in turn, causes serious injuries to an adult or child customer of the restaurant.

An incident that took place in Queens, New York demonstrates how a  brief moment it takes for a nice outing at a restaurant can turn into a tragedy. It was reported that a seventeen-month-old baby sustained severe burns when scalding hot water fell on him at a restaurant after a waiter placed a cup containing hot water on the family’s table. The heat of the water stripped the skin off of a large portion of the baby’s stomach. It also fell onto his arms and legs. Furthermore, news reports indicate that restaurant employees initially tried to get ointment and napkins for the burns, so no one called 911 until over twenty minutes after the injury.

The burn injuries sustained by the little boy in Queens exemplify just one of the many ways that children may sustain injuries in a restaurant. Other common types of injuries to children in restaurants are: bruises and broken bones from falling out of booths, chairs, booster seats, and high chairs; lacerations and cuts from knives left near a child; injuries in play lands, play grounds, or play structures on the property of a restaurant; and slip and fall injuries from unclean surfaces or other hazards in the restaurant.

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Day-Care-Sleep-Practices-300x195One would think that the safest place for a child to be at a day care center is in a crib or sleeping area. In actuality, the crib or sleeping area in a day care center could be quite a dangerous place for a child. In fact, some children even die while being supervised in a crib or sleeping area in a day care center. Actually, the so called supervision is lacking. In addition, the term “supervision” is an overstatement in these situations. In actuality, the supervision is wholly lacking. The simple but dangerous act of putting a blanket or a soft stuffed animal in the crib or sleeping area of the child can lead to catastrophic results in the form of serious personal injuries and even the death of a child.

An incident out of Tennessee demonstrates how something as peaceful and innocent as nap time can quickly turn injurious. It was reported that a nine-month-old baby was found sweating profusely and tied up by a sheet in a pack n’ play crib at his daycare center. The day care reportedly indicated that it used the blanket to restrain the infant during nap time, in order to prevent the baby from “wallowing” around while he slept. According to the news reports, use of a blanket in the sleeping quarters of a baby violates existing safety procedures in place at day cares. The Department of Human Services found other infants napping at this day care covered in blankets upon investigating the center after the parents of the nine-month-old reported the incident.

Events like these must be taken seriously because of the dangers bedding presents to small children. According to the Consumer Product Safety Commission, blankets and pillows present special risks to babies that they do not present to adults or even older children. For example, an average of thirty-two babies die each year from pillows because of the suffocation risk they present. Pillows can block the nose and mouth of a baby, who unlike an adult or an older child, may not be able to move or roll over to get oxygen. Accordingly, pillows are not recommended for children under one and a half years of age. Blankets and toys present a similar risk as well as the additional risk of becoming wrapped around a child’s neck. Use of pillows, blankets, and toys also create a cluttered sleeping space for a baby; studies show a cluttered sleeping space increases the risk of Sudden Infant Death Syndrome, also known as SIDS, which causes infants to pass away in their sleep. Thus, practicing safe sleep techniques with infants is critical. See Consumer Product Safety Commission – Safe Sleeping Tips.

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Public-School-Negligence-300x262In Oklahoma and other states, parents rely on schools and day care centers to be places of learning and safe havens. Unfortunately, far too many teachers, day care centers, administrators, and principals misuse their positions of responsibility and end up harming children under their care. At times, the harm results from a moment of agitation and irritation on behalf of the child care provider / teacher. At other times, the abuse, neglect, and / or corporal punishment results from a more systematic and calculated form of retribution or corporal punishment. Some school districts still allow for corporal punishments, while others strictly outlaw this outdated from of child discipline. If a child has been subjected to abuse, neglect, or corporal punishment, there may be a case or cause of action to pursue on behalf of the injured child.

A recent incident out of Indianola, Oklahoma exemplifies a scenario where a principal disciplined students using corporal methods in a school district that still permits punishments of this nature. News outlets reported that the principal of a public school instituted corporal punishment to  two children, ages ten and eleven, in the form of a paddle as punishment for arguing. The policy of the school district allows the school to “swat,” also known as spank, students as long as the school has permission from the parents to do so. In this situation, the parents felt the school went too far with the discipline because the children had bruises, lacerations, and welts as well as trouble sitting and standing after the discipline occurred.

While incidents of this nature may seem rare, the National Education Association indicates that nineteen states still permit corporal punishment, usually through paddling. According to statistics from the 2011-2012 school year, the National Education Association also asserts that approximately 163,000 students face corporal punishments annually. Alarmingly, statistics also reveal a racial disparity in the students subjected to corporal discipline in schools as well as a bias towards corporally disciplining students with disabilities. In some districts, students of minority races are 500% more likely to be struck than white students, even though these school districts tend to have more white students than minority students. Furthermore, students with disabilities are up to 67% more likely to face corporal punishment than other students in their school districts. Thus, corporal punishment occurs with some frequency in schools across the country and sometimes exhibits bias against protected classes of students.  See National Education Association – Corporal Punishment in Schools.