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Negligent Supervision, Counting,and Reportingby Michelle H. McGinnis, Brian S. Dicker, and Veronica Getskow

Editor’s Note: The information in this article is intended as general practical advice based upon legal considerations. It is NOT intended as legal advice. Applicable laws vary from state to state. Consult with a lawyer for your specific legal needs. For more information, go to ChildCareCompliance.com and register free of charge. Exchange readers can access sample forms and create customized forms for their organizations. Register now and you will be alerted when the updated childcare law information is posted and webinars are scheduled.

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Much of what happened at Whiz Kidz Preschool on the day in question can be analyzed using general negligence law. The analysis starts with identifying a duty of care and then asks whether a person breached that duty by failing to act as a reasonable person would under like and similar circumstances. And finally, was the breach the cause of an injury? Many jurisdictions have laws that specifically define duties under cer-tain circumstances. As applicable here, state law might impose a duty to main-tain a certain teacher-to-student ratio when kids are on a playground, or strictly state that each child shall be visu-ally supervised at all times. Typically, when a specific statute has been violated negligence is presumed without the requirement of further evidence; but that is a lawyer shortcut. Even absent specially defined duties, every incident, like the incident at hand, can be ana-lyzed under general negligence law. There are many species of negligence. To name a few, one can be negligent while driving a car, cooking food in a restau-

rant, designing or building a road, or supervising a playground.

Becky’s Injury

The general duty imposed here is the exercise of due care in the supervision of young children. Because young children are generally incapable of exercising sound judgment, the persons charged with supervision are held to a very high standard of care. It follows that all children at play in a schoolyard must be observed all of the time. A best practices standard is that observing means more than casual watching; it means being on high alert for anything at all times.

Acting in high-alert mode, Barbara or Esther likely would have noticed the three children disappearing from view and could have either corralled the children back to where they could be watched, or they could have moved themselves to a better position to observe. In the former, the incident would have had no chance to occur; in

the latter, an observer would have noticed shovel-bearing kids arguing and might have been able to intervene before the argument got out of hand.

Another negligence issue involves the style and placement of the new slide. In keeping with the duty to observe, no obstacle ought to be permitted to inter-fere with the ability to perform that duty. Placing an opaque object in front of a known play area like a sandbox was most likely a negligent decision. If the slide’s location was the only choice available, then a different slide design should have been chosen so that the sandbox area could be viewed through the slide structure.

In the end a judge or jury would proba-bly find a breach of the duty to carefully observe and then the question arises: Was Becky’s injury caused by that breach? If it is determined that the injury to Becky would not have occurred had Barbara and Esther exercised reasonable care in the discharge of their duties, the

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school would ever contend that leaving a child unaccounted for in a freezing school yard is a usual occurrence; ergo, what happened to Robert would be clas-sified as an ‘unusual incident.’ Did this unusual incident threaten Robert’s phys-ical or emotional health? The physical aspect seems fairly clear. Even though in the end Robert may not have suffered a physical injury, the unusual incident certainly threatened his physical health, since it is plausible to assume that every moment of time that passed with Robert huddled un accounted for in the cold brought him closer to frostbite or possi-bly death. On the emotional side, having already been traumatized by witnessing Becky’s injury, a lengthy abandonment in a cold schoolyard would likely pile on the emotional scars. There seems to be a compelling case for requiring Barbara to report the incident involving Robert as an unusual occurrence.

When the licensing authorities eventu-ally learn about the incidents (usually from complaining parents), they will launch an investigation. The sanctions imposed for failure to report are heavier the more serious the injury and can include fines, distribution of public notices, suspension of license, and even facility closure. If the investigation deter-mined that Barbara was attempting to conceal the incidents, facility closure and possible criminal prosecution would be in play.

Conclusion

Be on the alert; let no child go unseen. Acquire an attendance recordkeeping system, train your employees how to use it, and make sure they strictly adhere to the system’s requirement. Reporting, communicating, and being transparent about incidents, no matter how embar-rassing, are always the safest course. Think long and hard before you choose not to report.

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submission to tuition assistance agencies.

In the end we are right back to a general negligence discussion, because a school hardly meets its duty of care when it cannot properly account for the number of children present. Further, the lack of a sound attendance recordkeeping system is likely to be deemed a negligent omission on the part of the school.

Becky, Robert, and Reporting Requirements

Most states, either by statute or adminis-trative rules derived from statutes, require child care and preschool facili-ties to report certain incidents to the appropriate licensing authorities. Many states also mandate that when an inci-dent occurs that requires a report to a licensing agency, the facility must also give notice of the incident to all parents with children enrolled at the facility. What was Barbara required to do?

It is a fairly standard requirement that any ‘medical occurrence’ must be reported to licensing authorities. A ‘medical occurrence’ is usually defined as any injury that requires medical attention beyond the minor first aid that a school can administer. Barbara recog-nized the severity of Becky’s thumb injury and acted properly by promptly notifying Becky’s mother to retrieve Becky for further medical attention; but Barbara’s duties did not end there. Clearly, the injury to Becky should have been reported to the proper licensing agency.

Robert’s case differs from Becky’s. Argu-ably, Robert did not sustain an injury that required medical attention beyond the remedial measures taken by Barbara, so Robert’s case may not be a ‘medical occurrence.’ However, many states also require the reporting of any ‘unusual incidents’ that threaten the physical or emotional health or safety of a child. No

injury would be deemed to have been actually and proximately caused by a breach of the duty of care and Whiz Kidz Preschool (or their insurance carrier, if they were wise enough to carry liability insurance) would have to pay damages.

The Trouble with Robert

Amidst all the confusion caused by Becky’s injury, school personnel missed their head count. Esther did her part, properly counting the number of children that returned to the school-house, but Sonia shot from the hip with a call of 17 and a child was left out in the cold. That a child arrived late and confused Sonia’s head count is no excuse. With a proper attendance recordkeeping system, Sonia and all other school personnel would have had a ready reference for the number and names of all children in attendance at any time. Not in any way to diminish what happened to Robert, but imagine a situation where there was a fire or earthquake requiring an emergency evacuation of the school and no one knew for certain how many children to account for.

In this age of predatory litigation and high scrutiny of schools and child care centers, it seems a given that every such facility would have a modern attendance recordkeeping system. Yet a recent litigation database search revealed hundreds of pending lawsuits against schools for incidents directly related to a lack of adequate attendance recordkeeping. Good attendance recordkeeping systems that incorporate sign-in and sign-out as their foundation are readily available, and no school should go without. Not only are such systems valuable to prevent incidents like what happened with Robert, they are also a good line of defense against false or suspect claims made by parents; and they provide for an easy translation onto forms necessary for

Childcare Compliance Presenter Biographies

Michelle H. McGinnis, Esq. Michelle H. McGinnis is a criminal prosecutor in Los Angeles and has worked for the prosecution for almost 20 years. Her experience includes school safety, gangs, narcotics enforcement, vehicle code enforcement, building code enforcement, nuisance abatement, and animal protection.

Prior to her legal career Michelle worked as an educator holding teaching credentials and classroom experience in early childhood, k-12 and adult education. She has owned and operated childcare centers for more than 13 years and has spent a lifetime in the childcare industry. When asked how the dual careers are compatible, her answer is that they compliment each other. The early childhood experience in particular is the common denominator in the most serious and heinous criminal offenders.

Veronica Getskow, Ph. D. Veronica Getskow has taught preschool, kindergarten and early childhood classes at the community college and university levels. Her five children have taught her things the textbooks left out. She holds a master’s in Educational Psychology and a Ph.D. from California State University – Los Angeles. She is a licensed Brain Gym Consultant and a member of Pi Lambda Theta, and NAEYC. In addition, Veronica is a published author. Her books are: Children with Special Needs (co authored with Dee Konczal) and Incredible Edible Geography. Veronica Getskow is currently an adjunct professor at California State University – Northridge.

Brian S. Dicker, Esq. Brian S. Dicker, has been a practicing attorney for 28 years. Brian’s office is a general practice with emphasis on advising businesses in diverse areas and document/contract drafting for businesses of all sizes, including banks, savings & loans, mid-sized corporations, family-owned companies and preschools. Brian has also been a law school professor for three years, teaching the subject of legal writing.