According to estimates by the Centers for Disease Control and Prevention
and national child safety experts, an average of 37 children die each
year after being left inside enclosed automobiles. In today’s post,
an accident lawyer will explain the concept of liability in these largely-unnecessary
deaths and the possible legal measures that may be available to the victims’
families. Let’s begin by taking a look at two recent cases.
At about 4:30 p.m. on Friday August 8th, 4-month-old Presley Walker was
found dead in a car seat in the back of her grandmother’s car. The
girl’s grandmother stated that she had forgotten to drop off the
child at her Luther, OK (Oklahoma City metro) daycare center that morning
before going to work. According to the National Weather Service, the outside
air temperature that day may have reached at least 88 degrees. As of the
following week, no charges had been filed.
Case One Discussion
Only those who have lost a child to sudden death, from any cause, can appreciate
the mental anguish that little Presley’s grandmother must be feeling.
Despite that anguish, there is no doubt that she was negligent by forgetting
that the child was in the car. Given that negligence occurred can the
child’s parents, or a custodial parent, file a wrongful death lawsuit
against the grandmother?
Until relatively recently, children, parents and grandparents could not
be sued by a child, parent, or a grandparent because of the legal doctrine of
family immunity. This doctrine has its origin in insurance law, where such lawsuits were
prohibited to prevent insurance fraud involving “staged accidents”
by a family member who would, in turn, sue the family member’s insurance
carrier. Over the years, this doctrine has slowly changed and now, in
certain circumstances and in certain states, relatives who can prove negligence
or a deliberate disregard for the law may be able to file a lawsuit. Unfortunately,
Oklahoma state law is not clear on whether the child’s surviving
parent/parents could bring a wrongful death lawsuit against the grandmother
on the grounds of negligence.
Myles Hill, aged three, was found dead sometime after 8:30 p.m. on Monday,
August 7th, when the child’s great aunt called authorities to report
the child missing after failing to be dropped off at her residence by
his daycare center. First responders, including police and fire rescue
workers, found the boy’s lifeless body on the back floor of a vehicle
belonging to Little Miracles Academy of Orlando, FL. A worker at the daycare
center told police that she had forgotten to perform a head-count and
that the boy had been left inside the hot vehicle on a day when outside
temperatures were reported to have been 94 degrees.
Myles became the 32nd child to die in a hot car this year. Five of those
deaths have occurred in Florida. Deborah St. Charles, an employee of Little
Miracles, was later arrested on a charge of aggravated manslaughter of a child.
Case Two Discussion
The facts in this case differ from Case One on three critical points:
1. The daycare center was responsible for the safety of its client children.
That responsibility extended to its employees performing their usual job
duties. Thus, the daycare center owed a duty to the child and the child’s
2. The State of Florida, through its Department of Children and Families,
has regulations that all daycare centers must obey. These regulations
include checking company-owned vehicles after transporting children, performing
“head counts” during the day, and maintaining logs and other
records of head counts.
3. According to news reports, an investigation at the daycare center found
that the facility had failed to maintain those records and could not show
that their employee had checked the company vehicle on the day of the
child’s death. Therefore, given the known facts, the family of little
Myles appears to have a strong wrongful death case against Little Miracles
Academy on two different grounds.
In addition to the grounds of negligence Florida, among other states, recognizes
the legal concept of
culpable negligence. Basically, Florida accepts doctrine that any personal injury which occurs
during the commission of a criminal offense is sufficient to establish
negligence on the part of the defendant in a civil lawsuit. The criminal
offense need not be a felony or even a “major” misdemeanor,
the fact that it was a crime under Florida law is all that is required.
Both "simple” and “culpable” negligence appear
to be present in the case of young Myles.
The death of a child is always tragic, and even more so when that death
could have been prevented. In Case One, the available evidence suggests
that the child’s death was a tragic, although preventable, accident.
In Case Two, the child’s death was even more tragic in that had
the daycare complied with the law, that death was preventable.
Questions of liability, and of a family member’s potential liability
in child deaths are among the most difficult to establish in civil law.
Due to this complexity, anyone suspecting that their child’s tragic
death should arrange a consultation with a local accident attorney to
review the facts of their case and to explore any legal actions that may
be available. As always, only an accident attorney with an understanding
of local and state law can offer the best legal advice regarding these