Legal Question in Civil Litigation in Maryland

Are parents liable for assault by their toddler?

My 2&1/2 year old daughter has been bitten on two separate occasions within a 2 week time span by a particular 2-3 year old classmate. One bite was on the arm and the latest one was on the cheek, as documented by the daycare center. The daycare director said that they are aware that they have a child who is a biter and that they will try to look into it. My question is: is the daycare center legally liable, or can the parents be held legally liable, and can I press charges or pursue legal action if this happens again? It seems to me that someone needs to be held liable for something as serious as biting if it is a repeating occurance.

Asked on 11/17/04, 9:26 pm

1 Answer from Attorneys

Alan Albin Alan S. Albin, Attorney at Law

Re: Are parents liable for assault by their toddler?

Think carefully about pointing "the finger of blame."

Your question possibly indicates that you are "on notice" that leaving your child in that particular day care center may be continually hazardous to your child. As the child's parent, the primary responsibility for her care rests with yourself, not with the day care center.

Since the immediate issue is protection of your child from any further physical harm of this nature, and since your question seems to indicate the day care center has an inability or unwillingness to prevent future biting incidents, your only recourse may be to withdraw the child from that day care and find another one. And believe me, I know how difficult this can be.

Regarding the past biting incidents which have already occurred, you may have a negligence cause of action against the day care center.

As to any future biting incidents that may occur, you cause of action may be questionable. Since you are "on notice" of the danger, your failure to remove your daughter from that day care might be construed as contributory/comparative negligence, or perhaps assumption of the risk.

The primary person who is legally liable and responsible for a child's care is that child's own natural and/or custodial parents/guardians, which in this case, is YOURSELF. Not the daycare center, and not the biter's parents.

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Answered on 11/20/04, 10:11 am

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