Transportation Issues: How to Protect Children and Your Business

Family child care providers face two potential risks when parents pick up their children under the influence of alcohol or drugs or fail to use a car seat.

Providers who fail to report a child at risk can be accused of violating their responsibility as a mandated reporter of child neglect and could lose their license.

In addition, providers may face financial liability from a parent lawsuit if a child is injured in a car and the provider knew the child was at risk.

I recently delivered a webinar “Managing Legal Risks in Early Childhood Programs” sponsored by Early Childhood Investigations Webinars. You can listen to it for free.

Here are some Questions and Answers I prepared after the webinar in response to questions raised during the webinar about transportation issues.

Q: “I cannot see cars when parents/caregivers pick-up, so unless they state they don’t have a car seat, how am I supposed to be responsible if there is no car seat (if they don’t say anything)?”

A: You want to have a transportation policy that says parents are supposed to have appropriate car seats. If you don’t see them picking up without a car seat, you are not liable.

Q: “Is my program at risk if a parent that smells of marijuana comes to pick up her child? They could have been around someone and the smell is on them from that?”

A: Your primary responsibility is to keep children safe. If you smell marijuana on a parent then you should conclude that it’s not safe for a child to be in the car with that parent. You don’t know if the parent smoked or not, but that doesn’t matter. Since the child is potentially at risk, you need to address this. Your transportation policy should say that you will act if you think the child is at risk, regardless of what the parent might say. Tell the parent that if they show up again smelling of marijuana you will ask that they not transport the child and that you will call a back up person to take the child home. If the parent insists on taking the child, call 911.

Q: “Is there any liability if a child shows up smelling of alcohol or marijuana and drops off?”

A: Wow. This child is at risk and as a mandated reporter you need to contact child protection. Obviously, you want to speak to the parents about this first. But, I would tell them that if it happens again you will report the parent. Failure to take these steps could cause you to lose your license.

Q: “What happens if you do not smell or notice impairment however parent IS impaired and crashes after pickup?”

A: You are not responsible in this situation because you had no knowledge that the child was at risk.

Q: “What liability does my program have if we take children on the city bus?”

A: If there is an accident on the bus, the bus company’s vehicle insurance will cover your children. Once the children get off the bus, you want your own business liability insurance to cover the children.

Q: “We put a child on a van to go to EEC and we have to install the car seat into the van!??”

A: As a general rule, family child care providers do not want to be involved in installing car seats or putting children into car seats of parents’ vehicles. This is because it increases the risk to your program if the child is injured as the result of a faulty installation of the car seat by you or your staff. If you are using the van of another child care agency (EEC) and must install the car seats, then your program does take on some additional risk if there is an accident. If you can convince the van owner/driver to install the car seats, this reduces your risk. If not, then you/your staff need to have the proper training to properly install the car seats.

Q: “I transport kids in my car so would I need more liability coverage?”

A: Probably yes. All child care providers who use their own vehicles should contact their car insurance agent to make sure they are covered when transporting children. Get it in writing that you are covered. You may have to purchase commercial car insurance. Some companies will not insure you, so you may have to shop around for a different policy.

Q: “Why would you want to include a transportation fee in the regular fee and not have it separate?”

A: In general, you do not want to charge parents to transport their children in your vehicle. This is because you may have to get a commercial drivers license and you may be in violation of local laws dealing with vehicles for hire. If you include the fee as part of your regular rate then you can avoid these problems. You also want to check with your car insurance agent to make sure you are covered when you do transport children.

Q: “We use the county transit to take the children to the library and there is a fee of a $1 round trip. I ask the parents to pay that dollar. Am I ok on this?”

A: You are fine. Since you are using public transportation this is different that using your own vehicle and there is no additional risk to your program.

Q: “What if a parent leaves other small children in the running car while she comes into the child care to pick up another child?”

A: You face a risk of a lawsuit if a child is injured while on your property. This may also be a situation where as a mandated reporter you must report this to child protection. So, tell the parent they cannot leave children in their car while it is running.

Q: “What if my helper babysits for a child and takes him/her in their car from my home?”

A: There are two issues here. First, the helper should check with her car insurance agent to make sure her insurance will cover her in this situation. She may need to get commercial car insurance. You should demand to see a copy of her insurance policy that covers this situation. Second, you do take on some additional risk by allowing the helper to use her car and to care for children in the helper's home. You can get a “hired and non-owned” insurance policy to protect yourself from a lawsuit by the parent if the child is injured in the car. You also take on more risk when the helper babysits a child enrolled in your program. This is because the parent could sue you if the child is injured while in the home of the helper. I would recommend not allowing helper's to babysit. If you do so, get the parent and staff to sign a “hold harmless” permission form that states the center is not responsible if a child is injured. See a sample form in my book Managing Legal Risks in Early Childhood Programs.

Q: “I had a dad drop off his daughter, and in our greeting it came up that she was not in a car seat but in her brother’s lap on their way to my daycare. This has happened a couple times now (they live 2 blocks away). I cannot physically SEE inside his truck from my house. Am I responsible for anything?”

A: Probably yes, because you know that it has happened in the past and is likely continuing to occur. You need to tell the father he must use a car seat and if he doesn’t, and you see it, you will call 911. If the father won’t agree to always use a car seat, you should terminate immediately. You can’t take the risk of a lawsuit or losing your license over this.

Q: “Am I liable when parents, who pay for supervision, insist on their child being able to walk home unsupervised? Does distance, density, current weather condition factor into my liability?”

A: It depends. You need to make sure that the child will be safe. This means checking with child protection or your licensor to find out if they believe the child would be at risk and you must report it as a mandated reporter. If they are okay with the arrangement, then you want a written permission form signed by both parents clearly stating when the child will leave your  home alone. You also want to have business liability insurance to protect yourself in case the parent does sue. Assuming you are taking safety precautions and not releasing a child when you think it is dangerous (weather, child ill, etc.) then it’s highly unlikely you can be held liable. Even if everyone else is okay with this, don’t agree to it if it makes you uncomfortable or you are losing sleep about it.

Q: “Can an older sibling at age 16 or 17 pick up a child in a vehicle as long as the parent says they can?”

A: Same answer as above.

Tom Copeland - www.tomcopelandblog.com

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