Premises Liability\Negligent Operation of Daycare Center

Case Name: Withheld

County: Suffolk

Amount of Settlement: $5 million

Type of Action: Premises Liability\Negligent Operation of Daycare Center

Counsel for Plaintiff: Darin M. Colucci, Esq., Brendan R. Pitts, Esq. and Colucci, Colucci, Marcus & Flavin, P.C.

Date: September 17, 2015

In March of 2014, a two year old boy wandered out of the front door of a daycare center being operated in an urban area. The daycare center itself was on the first floor of a four-story building. The little boy, captured on surveillance, exited the daycare center and attempted to exit the building but was unable to open the front door which led to a courtyard and then a city street. Instead, he turned around and ascended a staircase to a point he was no longer visible on the surveillance footage. Exactly one minute later, the daycare operator was seen running out of her apartment and out the front door leading to the courtyard and the city street. Although there were no witnesses and no more useful surveillance footage, the facts dictate that the little boy ascended four flights of stairs and was able to access the building’s roof. Exactly fifteen minutes after he first walked out of the daycare center, he fell off the roof to his death.

Investigation revealed that the daycare operator had been preparing lunch for the children in her charge when she lost sight of the little boy. She only became aware of the situation when another child notified her that the little boy had walked out the front door. Plaintiff’s counsel was able to obtain outdoor surveillance footage which depicted the daycare operator leaving the premises to look for the little boy and then learning upon her return minutes later, that she had locked herself out of the building. She is seen “buzzing” other apartments trying to regain access, but was unable to do so. She again left the premises for several minutes eventually returning with one of the property’s caretakers. He let her back into the building and is seen on videotape walking up one-half flight of stairs ostensibly to look for the little boy. When he did not see him, both the caretaker and the daycare center operator again left the building in search of the missing child.

Investigation into the event further revealed that the roof access door was broken, according to Boston Police Department investigators and Inspectional Services representatives. Officers stated that they had to pull the door shut in order to get the locking mechanism to engage. They also noted that there was an alarm on the door which was inoperable at the time of the incident. Plaintiff’s counsel conducted their own investigation into the incident and learned that the daycare center operator had been terminated by a company just months before for repeated noncompliance with agency rules, most of which pertained to safety. Plaintiff’s counsel also relied on specific CMR’s which require that daycare operators remain in position at all times to intervene and to prevent a child in their care from danger. Clearly, the daycare operator failed in this regard.

Claims were also pursued against the building owner and a separate company which operated the building. Plaintiff’s counsel argued that during the initial investigation into the boy’s death, various representatives of both the building and the maintenance company appeared to know that the door leading to the roof was broken. For example, the property manager was asked by an investigator less than an hour after the boy’s death if the rooftop had a working locking mechanism to which he responded “no”. Likewise, representatives were asked if the roof door alarm was operable. Again, without hesitation, the representatives answered “no”.

Plaintiff’s counsel also argued that a gross negligence standard could apply to this situation. In point of fact, neither the daycare center operator nor any representative of the building ever called 911 after learning that the child was missing. Again, Plaintiff’s counsel was able to prove that a full 15 minutes had passed between the time the child walked out of the daycare center and when he ultimately fell from the roof. Run reports from both the responding ambulance company and police department showed that both were on scene within 2 minutes of receiving the call. Plaintiff theorized that if either the daycare operator or a representative of the building maintenance company had called 911, that the professionals trained to deal with this sort of emergent situation would have had ample time to intervene and stop the child from falling from the roof.

The little boy was the only child of unwed parents, both of whom were in their 20’s at the time of the child’s death. The case was settled after two, all-day mediation sessions for $5,000,000.00.

 

Share with your networksShare on FacebookShare on Google+Tweet about this on TwitterShare on LinkedIn