The following is a report on Attorney Pete Pearson’s recent victory:
CASE: SW as parent and next friend of TW, a minor (name changed to protect client’s privacy) v. MFW (name changed to protect identity), DeKalb County, Probate Court, Georgia
DATE OF SETTLEMENT: 8/29/2013
PLAINTIFF ATTORNEY: Pete Pearson, Pearson Law Firm, Atlanta, GA
FACTS & ALLEGATIONS: On Saturday April 30th, 2011, at approximately 3 p.m., TW, a 5 year old girl, was dropped off at the home of the Defendant. The Defendant had agreed to babysit TW.
The previous Sunday was Easter Sunday and TW’s mother, Ms. SW, had pressed out TW’s hair for the occasion. When Ms. SW dropped her daughter off at the Defendant’s house, TW’s hair was up in a ponytail.
On the evening of the loss, the Defendant loosed the pony tail and let TW’s hair out and shortly after gave TW a lit candle to take into the house (the Defendant was outside talking to a friend on the phone). TW went inside the house unsupervised and while inside her hair caught on fire.
What happened next shocks the conscience. After this 5 year old child was burned, the Defendant told no one, called for no medical attention, and hid the fact from her own husband (by putting panty hose on TW’s head to conceal the burns). The Defendant put TW to bed and kept her quiet during the night (while she fussed) by giving her Motrin.
All that night, the following morning, and throughout the next day, the Defendant again told no one and called for no medical attention. She did not inform the child’s mother. It was not until nearly 24 hours later, when the child’s mother returned, that her mother discovered the burns. Immediately she called 911 for an ambulance.
Approximately 24 hours passed after the Defendant’s discovery of the child’s burns with no effort made to get this little girl any medical attention.
The medical records are full of references to the Defendant’s neglect to call for medical attention.
The Grady Emergency Department notes indicate that:
“Mom arrived to pick up patient today and saw burn.”
“[Mom] was not called or informed of the burn.”
“Patient has a burn to rt[sic] side of head and face that occurred yesterday from a candle.”
“The grand mother did not seek medical attention for the daughter[sic].”
Walter Ingram, MD, Director of the Grady Burn Unit, wrote in his September 13, 2012 narrative that:
“[H]er grandmother did not immediately seek medical attention.”
The medical records also indicate that when TW was brought to the Emergency Department she had cellulitis, a skin infection. The delay in getting TW medical attention caused the burns to become infected. This is additional evidence that the Defendant did not seek medical attention for many hours.
LAW OF THE CASE
Georgia Courts have recognized a tort known as “Negligent Supervision of a Child of Tender Age” See Wallace et al. v. Boys Club of Albany (211 Ga. App. 534), (439 SE2d 746) (1993).
“As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury.” Laite v. Baxter, 126 Ga. App. 743, 745-746 (2), (191 SE2d 531) (1972) as quoted in Wallace et al. v. Boys Club of Albany (211 Ga. App. 534), (439 SE2d 746) (1993).
“Because a child may be unable to appreciate a danger and, therefore, to have knowledge of the hazard equal to that of the owner/occupier, an owner/occupier may be held to a higher standard of care toward a child than toward an adult.” Atlanta Gas Light Co. v. Gresham, 260 Ga. 391 (3), (394 SE2d 345) (1990).
TW’s injuries were caused by the Defendant’s negligent failure to exercise “reasonable care” for the safety of the child while the child was under her supervisory control.
The tort of “Negligent Supervision of a Child of Tender Age” governs the liability of adults who have failed to exercise their duty of care when monitoring children. A person may become liable for negligent supervision if:
- They know (or have reason to know) that the child must be controlled or protected, AND
- They have failed to do so
Any person who is legally entrusted with the care of a minor can be subject to negligent supervision laws.
These may include:
- Legal guardians
- Relatives such as grandparents
- Day care providers
- School officials
- Community group leaders (such as a boy scout troop leader)
The Defendant’s negligent supervision included, but is not limited to:
- Failing to secure a dangerous item (the lit candle)
- Failing to keep the child safe from hazards in the environment (lit candle)
- Allowing the child to use items a child should not be allowed to use (lit candle)
- Leaving the child unsupervised while playing with materials that could cause a fire which results in burns
LAW ON PUNITIVE DAMAGES
This case involves civil liability of a gross and aggravated nature.
There is a pending criminal charge related to this civil claim. The Defendant has been charged with Cruelty to Children (O.C.G.A. Section 16-5-70). This criminal charge is pending in DeKalb County Superior Court.
Punitive damages are additional damages awarded because of aggravating circumstances in order to penalize, punish, or deter a Defendant.
Punitive damages may be awarded in tort actions in which it is proven that the Defendant´s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.
- For failure to seek medical attention for an injured child under her supervision,
- For concealing the child’s injuries, AND
- For conscious indifference to the consequences the delay in seeking medical attention would cause the child,
This Defendant should be deterred from future like conduct by an appropriate award of punitive damages.
INJURIES/DAMAGES: Hair loss and scarring on the right forward scalp area. Scarring on the outside of TW’s right ear. Malformation present on the outside of TW’s right ear.
TW faces years of disfigurement as she passes through childhood, adolescence and becomes an adult. Doubtless her embarrassment at her disfigurement will only grow as she matures into a young woman.
It is painful to imagine what TW will experience as she grows up. Her peers will surely notice her prominent scarring and bald spot. Certainly she will be teased and bullied at times. As she moves into maturity she may struggle with opposite sex relationships and may feel unattractive and unwanted due to the garish nature of her disfigurement. She may never form a healthy self-image.
The value of a young woman’s hair to her identity and self-image is impossible to calculate. A woman’s hair is central to her appearance and how she perceives and is perceived by the world. When there is a visible and prominent problem with a woman’s hair, that is often the first thing that others see. TW will bear that burden.
TW will be forced to learn to cover and conceal her baldness and scarring. It will be difficult for her enjoy her childhood years in a normal, carefree manner. She and her mother will have to pay special attention to hair care and face unusual financial and time expenditure on creating and maintaining creative ways of making TW’s appearance presentable.
A 5 year old child who suffers such a devastating loss is incapable of fully appreciating what consequences will flow from her injury. But as time passes, her understanding will grow. Thus this is an injury where the pain and suffering element will mushroom with time, perhaps peaking during her adolescent years, and perhaps diminishing if later in adolescence surgeries successfully reduce the prominence of the scarring and baldness.
Because of TW’s age, she is not a good candidate for surgery, according to Dr. Ingram. Walter Ingram, MD, is the Director of the Grady Burn Unit. As Director of one of the busiest burn trauma units in the world, he is in a paramount position to opine on whether a 5 (now 6) year old child is a good candidate for surgery.
Due to the unavailability of a short or medium term surgical option for TW, she will spend a decade or more just as she is – with garish prominent facial disfigurement. This will take place during her most tender years, childhood and adolescence. Consequently her pain and suffering damages are significant.
TW also has scarring on the outside of her right ear. This will prove to be even more difficult to conceal.
RESULT: The parties negotiated a settlement of $301,000 pre-suit. This was the full amount of the insurance coverage available to the Defendant.
My comments on this case:
This was a difficult claim to pursue because the Defendant was the child’s grandmother. This presented a thorny legal issue of whether intra-family tort immunity might apply to this claim and bar it. Intra-family tort immunity is the legal doctrine that says family members may not sue one another. The policy behind such a doctrine is the preservation of family harmony. I researched this issue before taking this case and determined that while it might bar the claim, this child needed help and I wanted to offer mine. Fortunately the insurer did not raise the issue of immunity.
Another hard fought issue in the case was what to do with the minor settlement. Minor settlements of this size must be approved by the Probate Court in which the minor resides. The judge assigned this case did not like our proposal. We had proposed placing the minor’s funds into a minors pooled trust. The judge wanted us to use a county administrator. My clients did not wish to deal with all the ins and outs of a county administrator and also were convinced that a minors pooled trust would be the best fit for their daughter. It took about 6 months of work but in the end the judge granted our request to use the minors pooled trust. It was a hard fought victory.
I worked on my client’s case for a year to achieve this result and I am thankful that in the end my client received all the available insurance coverage.
Attorney Pete Pearson has been working for injury victims for over 17 years right here in the Metro Atlanta Area. Located in the Greater Atlanta Metro Area, he serves clients all over the State of Georgia. He has a sub-specialty in child injury law. You can talk to Attorney Pearson for a free initial consultation by clicking here or by calling him at Six-Seven-Eight 358-2564.