Daycare Covering Up Injuries to Children and How they Happen in Atlanta


I recently mediated a leg fracture case at a Georgia Daycare and in that case, the daycare employees had filled out 4 different incident report versions of how he broke his leg. They claimed he tripped while running, then that his shoes were too big, then that it was just unknown. Finally when Right from the Start reviewed the surveillance tape, you can clearly see him slipping in water and hitting the ground hard.

In that case the parents were lucky that the video tape held the staff accountable, but in many cases we are not so lucky and have to find other ways to prove that the employees may be lying about how the child was injured. Consider the appellate case below.

Persinger v. Step By Step Infant Development Center Case

In Persinger v. Step By Step Infant Development Center, the Court of Appeals of Georgia was tasked with determining whether there was sufficient evidence to proceed to trial regarding the injury of a child under the care of a daycare facility. The case hinges on the principles of negligence and the application of the doctrine of res ipsa loquitur. The daycare said that the child was running and caused his own problem. The child is too young to effectively recount what happened, so that parents relied on the treating Doctor to establish the fact that kids cannot break their legs in this fashion without a substantial fall.

Case Background

James Persinger, an 18-month-old child, sustained a broken left femur while under the care of Step By Step Infant Development Center. His parents filed a lawsuit against the daycare center, alleging negligence. The trial court, however, granted summary judgment in favor of the daycare, leading to an appeal by the parents.

Legal Standard for Summary Judgment

On appeal, the Court of Appeals conducted a de novo review of the evidence to determine if a genuine issue of material fact existed. The court’s task was to decide if the undisputed facts, viewed in the light most favorable to the nonmoving party (the Persingers), warranted judgment as a matter of law.

**Key Testimonies

The case presented multiple key testimonies. Wendy Philliber, James’ teacher, described the incident where James ran towards her, stumbled, and twisted his leg. Lana Jamieson, co-owner of the daycare, corroborated this account, noting that she observed James fall and twist his leg from a window. Importantly, the area where James fell was carpeted and free of obstructions.

The parents presented affidavits and testimony from Dr. Anthony Alter, an orthopedic surgeon. Dr. Alter opined that James’ injury, a broken femur, was consistent with a significant twisting force or a fall from a height greater than the child’s height. He asserted that the injury could not reasonably have occurred from merely running and falling on a flat surface.

Negligence and Duty of Care

In Georgia, a negligence claim requires proving four elements: (1) a legal duty, (2) a breach of that duty, (3) an injury, and (4) a causal connection between the breach and the injury. The legal duty of a childcare provider is to exercise reasonable care, akin to the standard of the average reasonable parent. This does not entail guaranteeing the child’s safety or foreseeing every possible hazard.

Appellate Court’s Analysis

The appellate court focused on whether there was evidence of a breach of duty and if that breach caused the injury. The Persingers argued that the daycare failed in its duty by allowing James to run, which led to his fall and subsequent injury. However, the court noted that allowing a child to run, in and of itself, does not constitute negligence.

The more substantial claim by the Persingers was supported by Dr. Alter’s expert testimony. He suggested that the nature of the injury indicated a significant twisting force or a fall from a height, which contradicted the daycare’s account. This expert opinion implied that there might be more to the incident than the daycare disclosed, raising the possibility of a lack of adequate supervision or another form of negligence.

Doctrine of Res Ipsa Loquitur

The doctrine of res ipsa loquitur allows for the inference of negligence when an injury occurs in a manner that typically would not happen without negligence and when the instrumentality causing the injury was under the defendant’s control. To apply this doctrine, three elements must be satisfied:

  1. The injury is of a kind that ordinarily does not occur without negligence.
  2. The instrumentality causing the injury was under the exclusive control of the defendant.
  3. The injury was not due to any voluntary action or contribution by the plaintiff.

In this case, the appellate court found that Dr. Alter’s testimony was crucial. It suggested that the injury James sustained would not have occurred in the absence of negligence, thus satisfying the first element of res ipsa loquitur. The daycare workers had exclusive control over James during the incident, meeting the second element. Finally, there was no evidence suggesting that James contributed to his injury, fulfilling the third element.


The appellate court concluded that the evidence presented, particularly the expert testimony, was sufficient to raise an inference of negligence and apply the doctrine of res ipsa loquitur. Therefore, the court reversed the trial court’s summary judgment, allowing the case to proceed to trial.

This case underscores the importance of expert testimony in negligence claims, particularly in situations where direct evidence of a breach of duty is lacking. It also illustrates the cautious yet vital application of the doctrine of res ipsa loquitur in ensuring that potentially negligent parties are held accountable when the circumstances warrant such an inference.


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