Daycares and covid liability waivers

[Anonymous]

Our didn't but I would sign one if they did. I understand daycare is a risk and I accept that risk. If you're not okay with it, don't send your kid.

On the negligence language, as a lawyer I would always advise a client to include that in a waiver. It doesn't mean the daycare is planning to be negligent in its COVID precautions.

[Anonymous]

There's a lot of confusion about tort liability. The status quo without a waiver isn't that the daycare is liable for everything, including covid infections beyond their control. A successful lawsuit for negligence requires a deviation from the standard of reasonable care and causation.

So everyone who is saying "well even if the daycare tries its best and does all the reasonable precautions, covid can still spread, so the daycare needs the waiver" is missing the point: Even without the waiver, the daycare wouldn't be liable.

The waiver of negligence claims only makes a difference when the daycare HASN'T acted reasonably, when it can be shown NOT to have taken all reasonable precautions. Why would any parent want to give the daycare a get out of jail free card under these circumstances?

[Anonymous]

I think it would be very difficult for someone to successfully sue because you can’t prove you or your kid got it from the daycare. But I guess the waiver shields them from even dealing with a lawsuit that would be thrown out.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Then keep your kid home.

Understand the US is a litigious society. I don't blame the daycare.

This is it, entirely. If you disagree about what reasonable precautions were, or whether they followed them when they claimed to, you might well want to duke it out in court. The waiver is phrased that way not necessarily so that they can slack off, but to draw a bright line so they don't have to worry about liability as much.

Put aside hidden motivations about "greedy trial lawyers." The fact remains, with the negligence waiver, they can slack off - they can fail to implement reasonable precautions - and you have no recourse.

[Anonymous]

Anonymous wrote:There's a lot of confusion about tort liability. The status quo without a waiver isn't that the daycare is liable for everything, including covid infections beyond their control. A successful lawsuit for negligence requires a deviation from the standard of reasonable care and causation.

So everyone who is saying "well even if the daycare tries its best and does all the reasonable precautions, covid can still spread, so the daycare needs the waiver" is missing the point: Even without the waiver, the daycare wouldn't be liable.

The waiver of negligence claims only makes a difference when the daycare HASN'T acted reasonably, when it can be shown NOT to have taken all reasonable precautions. Why would any parent want to give the daycare a get out of jail free card under these circumstances?

It's not about whether they are liable. It's about whether people whose mind goes to "can I sue?" are likely to think they have a case, if they argue about the details of what happened.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Then keep your kid home.

Understand the US is a litigious society. I don't blame the daycare.

This is it, entirely. If you disagree about what reasonable precautions were, or whether they followed them when they claimed to, you might well want to duke it out in court. The waiver is phrased that way not necessarily so that they can slack off, but to draw a bright line so they don't have to worry about liability as much.

Put aside hidden motivations about "greedy trial lawyers." The fact remains, with the negligence waiver, they can slack off - they can fail to implement reasonable precautions - and you have no recourse.

If that's what you think the people at your kids' daycare would do, why on earth are you entrusting your kids to them?

[Anonymous]

Anonymous wrote:

Anonymous wrote:There's a lot of confusion about tort liability. The status quo without a waiver isn't that the daycare is liable for everything, including covid infections beyond their control. A successful lawsuit for negligence requires a deviation from the standard of reasonable care and causation.

So everyone who is saying "well even if the daycare tries its best and does all the reasonable precautions, covid can still spread, so the daycare needs the waiver" is missing the point: Even without the waiver, the daycare wouldn't be liable.

The waiver of negligence claims only makes a difference when the daycare HASN'T acted reasonably, when it can be shown NOT to have taken all reasonable precautions. Why would any parent want to give the daycare a get out of jail free card under these circumstances?

It's not about whether they are liable. It's about whether people whose mind goes to "can I sue?" are likely to think they have a case, if they argue about the details of what happened.

They really wouldn’t, unless as PP said, the daycare had been grossly negligent and you could prove it.

[Anonymous]

Anonymous wrote:

Anonymous wrote:There's a lot of confusion about tort liability. The status quo without a waiver isn't that the daycare is liable for everything, including covid infections beyond their control. A successful lawsuit for negligence requires a deviation from the standard of reasonable care and causation.

So everyone who is saying "well even if the daycare tries its best and does all the reasonable precautions, covid can still spread, so the daycare needs the waiver" is missing the point: Even without the waiver, the daycare wouldn't be liable.

The waiver of negligence claims only makes a difference when the daycare HASN'T acted reasonably, when it can be shown NOT to have taken all reasonable precautions. Why would any parent want to give the daycare a get out of jail free card under these circumstances?

It's not about whether they are liable. It's about whether people whose mind goes to "can I sue?" are likely to think they have a case, if they argue about the details of what happened.

You think a waiver avoids dealing with lawsuits? "Greedy trial lawyers" will sue anyway, and litigate over scope, capacity, and enforceability (or they'll just plead around the waiver altogether, and allege gross negligence). So there will still be motions practice, discovery, and all that. All the waiver does is, at the end of the day if it's valid and enforceable, mean the daycare isn't responsible if it fails to take reasonable precautions.

[Anonymous]

Anonymous wrote:Our didn't but I would sign one if they did. I understand daycare is a risk and I accept that risk. If you're not okay with it, don't send your kid.

On the negligence language, as a lawyer I would always advise a client to include that in a waiver. It doesn't mean the daycare is planning to be negligent in its COVID precautions.

That's why lawyers make terrible businesspeople, generally. Belt-and-suspenders and risk aversion are all well and good, but is the prospect of possibly avoiding a hypothetical lawsuit in 2 years worth driving away desperately needed customers today?

[Anonymous]

Anonymous wrote:I think it would be very difficult for someone to successfully sue because you can’t prove you or your kid got it from the daycare. But I guess the waiver shields them from even dealing with a lawsuit that would be thrown out.

Whether you can prove where the COVID came from depends on the burden of proof, right? You can't prove it beyond a reasonable doubt, but that's not the standard. The standard would be is it more likely than not that you got the COVID in this place. If you can show your kid was the first to show symptoms, if you can show the degree of care the rest of the family took in other potential exposures, if you can show that other kids in the day care have COVID, and so on, you might be able to meet that burden.

That said, a waiver like this only shields the daycare from simple negligence, not gross negligence.

It sounds to me like an abundance of caution. I'm not sure whether I'd sign it; I guess it depends on how badly I needed the care, whether other care is available, if I trust the daycare to take precautions, etc. I imagine that this will become more the norm as it occurs to daycare owners that they should try to get their parents to sign something like this.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:There's a lot of confusion about tort liability. The status quo without a waiver isn't that the daycare is liable for everything, including covid infections beyond their control. A successful lawsuit for negligence requires a deviation from the standard of reasonable care and causation.

So everyone who is saying "well even if the daycare tries its best and does all the reasonable precautions, covid can still spread, so the daycare needs the waiver" is missing the point: Even without the waiver, the daycare wouldn't be liable.

The waiver of negligence claims only makes a difference when the daycare HASN'T acted reasonably, when it can be shown NOT to have taken all reasonable precautions. Why would any parent want to give the daycare a get out of jail free card under these circumstances?

It's not about whether they are liable. It's about whether people whose mind goes to "can I sue?" are likely to think they have a case, if they argue about the details of what happened.

They really wouldn’t, unless as PP said, the daycare had been grossly negligent and you could prove it.

Have you never read the threads on DCUM?

[Anonymous]

Yes, we had to sign a covid acknowledgement. It was basically just to confirm that we understand the precautions being taken by the center and that there's no way to actually bring the risk of infection to zero. If you are not willing to take the risk that your kid might be infected despite everyone's best efforts then daycare is not the place for you.

[Anonymous]

Anonymous wrote:Yes, we had to sign a covid acknowledgement. It was basically just to confirm that we understand the precautions being taken by the center and that there's no way to actually bring the risk of infection to zero. If you are not willing to take the risk that your kid might be infected despite everyone's best efforts then daycare is not the place for you.

An acknowledgement isn't the same as a waiver, though it possibly sets up a voluntary assumption of risk defense. And again, you're missing the point: negligence requires unreasonable conduct. If the daycare takes reasonable precautions and "your kid might be infected despite everyone's best efforts," then there is no negligence liability, and the waiver adds nothing.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:There's a lot of confusion about tort liability. The status quo without a waiver isn't that the daycare is liable for everything, including covid infections beyond their control. A successful lawsuit for negligence requires a deviation from the standard of reasonable care and causation.

So everyone who is saying "well even if the daycare tries its best and does all the reasonable precautions, covid can still spread, so the daycare needs the waiver" is missing the point: Even without the waiver, the daycare wouldn't be liable.

The waiver of negligence claims only makes a difference when the daycare HASN'T acted reasonably, when it can be shown NOT to have taken all reasonable precautions. Why would any parent want to give the daycare a get out of jail free card under these circumstances?

It's not about whether they are liable. It's about whether people whose mind goes to "can I sue?" are likely to think they have a case, if they argue about the details of what happened.

You think a waiver avoids dealing with lawsuits? "Greedy trial lawyers" will sue anyway, and litigate over scope, capacity, and enforceability (or they'll just plead around the waiver altogether, and allege gross negligence). So there will still be motions practice, discovery, and all that. All the waiver does is, at the end of the day if it's valid and enforceable, mean the daycare isn't responsible if it fails to take reasonable precautions.

I think someone with a lot of pandemic time on their hands could dig up MANY threads on DCUM where someone was edging around or outright asking if they could get monetary compensation about something that everyone could see was a money grab, not a righteous claim. Peer pressure often seems to settle them down, like "Okay, I was just checking, guys."

A waiver avoids *some* lawsuits if it means some people don't pursue lawsuits. That doesn't mean they had to be right about whether they could have sued, or could have won. It just means some people might be discouraged from doing so, rightly or wrongly.

And I absolutely do not buy that these absolute waivers are going to scare away enough people that daycares go under. People are absolutely desperate, especially with hybrid and DL. Someone will want the slot, and that will be someone who doesn't bristle at acknowledging in writing (whether legally enforceable or not) that they are not going to hold the daycare accountable for the -- inevitable -- infections.

[Anonymous]

I'm thinking if I was a daycare with limited spots I would weed out any applications with lawyer parents. You all are ridiculous.