With the rise of single-parent households and two-parent families with both parents working, child care is becoming a necessity. Due to the need for child care businesses, liability has become an important issue. It is crucial for both parents and child care providers to understand the basics of liability in this area of law. Please consult with an attorney in your area for specific guidance.
In Illinois, liability is determined by the rules of ordinary negligence. There is no duty to provide a higher level of care to children than to adults. Child care providers are expected to exercise reasonable care under the circumstances when caring for children. They are not considered insurers of children’s safety and this does not excuse the parents as being primarily responsible for ensuring the safety of their children.
Illinois has also adopted the Child Care Act, 225 ILCS 10. This Act establishes a basis for liability and provides rules for the creation and administration of the child welfare agencies, day care, foster homes, and transportation of children. Under the Act are provisions for licensing and criminal penalties. There are no additional civil penalties under the Act so a tort action will continue to be governed by Illinois tort law. However the Act and the administrative rules promulgating the standards that must be met for proper operation may be helpful in establishing a standard of care in a negligence claim.
With a negligence claim, a plaintiff must establish the elements of duty, breach, causation, and damages. First, a plaintiff must establish that those charged with the care of the child had a duty to exercise reasonable care. Then there must have been a breach of that care and the breach was the proximate cause of the child’s injuries. Finally, the plaintiff must show the damages connected with the injury. The exception is when a danger is open and obvious. Courts have held that children are expected to avoid obvious dangers in accordance with their ability to appreciate those dangers. Factors to determine this include the child’s age and maturity level, which is objectively and subjectively determined.
Generally land owners or occupiers do not owe a duty to child trespassers except under certain specific circumstances. To learn more about trespassing and children, please see our article entitled Premises Liability and Children. The open and obvious exception to a duty of care applies in this situation also.
Torts within the family enjoy a limited amount of immunity in Illinois. Parents, and those acting in a parental role, receive immunity for only those actions inherent to a parent-child relationship. Other instances of negligence, however, are not immune and a parent can be held liable for falling below the duty of care in these situations. For more information, please visit our article entitled Intra-Family Immunity.
This article is for general informational purposes only and is not to be construed as legal advice. Do not rely on the above information as all cases are different and different laws apply to different cases.
Contact our Veteran Child Care Attorneys
Consult an attorney in your area for further guidance. If your child was injured by another please call one of our attorneys at David K. Kremin & Associates, and we will give you a free consultation. We never charge unless we collect for you. Please call 1(800) ASK-A-LAWYER or 1(800)275-2529.