What Is “Negligence”? It is a Failure to Satisfy a Legal Duty

Everyone knows that “Negligence” is a scary word that gets thrown around by people after auto accidents. But not everyone knows exactly what the legal theory of “Negligence” means, or how it can affect a business.

Here is what a child care provider should know about Negligence in a professional business setting, and how to limit liability exposure for Negligence problems.

Technically, Negligence is a legal theory, which if proven in court, allows a judge or jury to order a person or business to pay “Damages”.

In other words, if a court finds a business negligent, and someone suffered a loss or injury as a result of the negligence, the court can order the negligent business (or person) to pay.

It is the most common theory listed in a lawsuit when a person sues for a personal injury or property damage. For example, when a driver gets rear ended and injured, they often sue and claim in the lawsuit papers that the other driver was negligence and therefore must pay for the injuries.

To prove Negligence in court, the injured person (usually the plaintiff), must prove the 4 required elements of Negligence:

1) that there was a legal duty;
2) that the defendant failed to satisfy the duty;
3) the failure (breach) was the legal cause of;
4) damages.

An example of a legal duty that all child care providers have is the duty to supervise children at all times.

An example of a breach of a legal duty would be a failure to supervise children by going shopping instead of watching children.

If a child were to be injured on a play ground while the provider was out shopping of site, then it can be said the 1) breach of 2) duty 3) caused the child’s injuries. If the child had medical expenses from the injury and a scar, then there are 4) damages, and all four of the required elements exist.

But there is no “Negligence” in cases of pure unforeseeable accidents, such as if a meteor falls on a child care center. This is because there is no legal duty to stop meteors, because it is impossible. If there is no duty, there is no negligence.

Even if the provider was shopping at the time the meteor hit, there would be no negligence, because the shopping was not the cause of the meteor falling. Nature causes meteors, and there is no way to stop them. Therefore, no negligence for meteor damages even if you breach a legal duty to supervise at the time.

Common defenses to Negligence include: 1) there was no duty; 2) the duty was satisfied; and 3) the breach of duty did not cause the problem.

In order to avoid a claim of negligence, providers should be aware of their most important legal duties, which include:

1) always supervise children in their care (even if parents are late);
2) always provide a safe environment (no holes in the yard, no dogs with history of biting, etc); and
3) provide reasonable warnings for potentially dangerous situations (such as “we cannot guarantee an allergen free environment”).

But in the child care world, things happen. And sooner or later, a claim of negligence may come even if you try your best to perfectly satisfy all legal duties. If someone gets hurt on your watch, regardless of the facts, there may be a claim of negligence. Because of this problem, a provider needs to limit their “liability exposure”.

The best way to limit liability exposure for problems like negligence, is to always have a liability insurance policy in effect. Business liability insurance policies do cover negligence if it happens, and insurers will hire attorneys to defend you if your center is sued for negligence.

For more detailed info on how negligence works, see our self help video on the subject. If you have questions, post a comment. We try to answer all comments for free.

Advertisement