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  1. #1
    Join Date
    Jul 2011
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    5

    Default Suing Over Sexual Abuse at a Daycare

    My question involves injury or loss that occurred in the state of: Virginia.
    In 1990, my daughter was 4 years old. I placed her in a home daycare that was licensed by the county and the state of VA. I toured the woman's home and inquired about who lived there and was told it was her, her two small children, and her husband.
    2 weeks later, my daughter came home and told me what happened. She was able to describe the incident in such detail that it allowed much good evidence to be collected later that night when the man was arrested.
    The perpetrator was the 27 year old nephew of the daycare provider who she later admitted to police was living in the home. On the day of the incident, she left my daughter alone with the man while she took her own children and went shopping.
    State of VA requires as part of licensing that all people in the home are reported and background checks conducted. This is for the safety of the children. The provider did not report him as living there, nor did she disclose the information to me.
    The man was charged with sexual assault of a minor child but they were going to drop the charge down to lewd and lacivious behavior because they only had DNA evidence on her clothing and a towel. A rape kit was done and thankfully my daughter was not raped and no evidence was found on her body. She was too young to testify at that time, hence the lesser charges.
    However, he posted bond the night before the preliminary hearing and went back to his country (India). This was also reported by his family. He was entered into the NCIS database as a fugitive and we were told that if he tried to come back he would be apprehended and since my daughter would be older, she should be prepared to testify. The provider lost her license for a year for her violation of the disclosure rule.
    We consulted a lawyer to inquire about suing the provider but he suggested we wait until they had some assets as the husband was a student then and they didn't have much.
    We always left the door open for my daughter to talk about the incident but the years went by and she appeared to have forgotten. So we all forgot, more or less.
    My daughter is now 20 and has recently become depressed due to problems in a relationship with her boyfriend. She is unable to get physically close to him without having a violent reaction and she has started to remember the incident and trauma after the incident.
    We spoke about it at length and she would like to bring a lawsuit now. The provider is still running a daycare but they have acquired considerable assets now and she has several employees.
    I believe that we can argue against the statute of limitations (2 years from age of majority in VA) running by virtue of the fact that the memory just returned and the trauma is now causing problems for her.
    The question is how can we find an attorney that knows how to fight a case like this, or is that even necessary. How often do these cases happen and how often are they won? I assume the DNA and other evidence is still locked up somewhere and will be made available if needed?

  2. #2
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    Apr 2009
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    Default Re: My Daughter Was Sexually Abused at Daycare-Wants to Sue Provider for Negligence

    The problem as I see it is that you AND the child AND the authorities WERE aware of the situation 16 years ago.

    In such instances you really can't expect to toll the SOL; action could have been taken then and there. Lack of assets then should not have prevented a judgment from being attempted; it likely would have remained collectable for several years afterwards (assuming it would have been awarded).

  3. #3
    Join Date
    Jul 2011
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    5

    Default Re: My Daughter Was Sexually Abused at Daycare-Wants to Sue Provider for Negligence

    That may be true, but why should my daughter be prevented from suing on her own behalf, because I got bad legal advice? I don't see anything in the code about tolling only if no-one knew about the abuse. Doesn't make much sense from a legal standpoint--doesn't it sort of defeat the purpose of tolling from age of majority for those who couldn't take action before?

  4. #4
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    Apr 2009
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    Default Re: My Daughter Was Sexually Abused at Daycare-Wants to Sue Provider for Negligence

    The point being, you could have taken action before. You were your daughter's "agent", in a sense.

    Your daughter hasn't recently discovered that she was abused - she was aware of it much earlier. Legal action was taken at the time. The fact that nobody talked about it and it sort of went away doesn't really change anything.

    However, I do encourage your daughter to have a chat with a local attorney.

  5. #5
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    Jul 2011
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    5

    Default Re: My Daughter Was Sexually Abused at Daycare-Wants to Sue Provider for Negligence

    Forgive me. I am not trying to be dense--but I'm still not understanding your point. The purpose of tolling the SOL is to give the actual victim the chance to seek justice on her own, is it not? It doesn't follow that the opportunity would be removed because I was her agent and could have acted on her behalf. I did act as her agent--and I did not have the money to retain an attorney and they would not take the case on contingency when there were no assets. Again, there is nothing in any law I have read that even remotely suggests this. I am just curious as to what your sources are for this, or is it just a personal opinion?
    As for your 2nd point, VA law states that tolling can go up until 2 years from the time that a causal relationship between the abuse and a current psychological condition is established. Even better though, I just went to check this again to make sure it was accurate, and discovered an article that said Virginia had extended the SOL to 20 years from age of majority. Wow!! That sure makes things easier.
    Now it becomes a question of the third party thing...Can provider be considered negligent if she didn't know her nephew was an abuser? And how difficult will it be to get the evidence transferred from the criminal system?
    http://www.wydaily.com/local-news/62...vil-suits.html

  6. #6

    Default Re: My Daughter Was Sexually Abused at Daycare-Wants to Sue Provider for Negligence

    The tolling of the statute would apply if she wanted to sue the actual perp - but if she's talking about suing a third party, that's a totally different scenario (who would be sued under third party liability umbrella, NOT as a direct perpetrator).

    State of VA requires as part of licensing that all people in the home are reported and background checks conducted. This is for the safety of the children. The provider did not report him as living there, nor did she disclose the information to me.
    Note that the law didn't require information to be disclosed to YOU. It's also relevent that the requirements for providers that applies to this case are the laws for providers that were in place THEN, not the laws for background checks that are in place NOW (and are much more stringent). To successfully bring a case against the provider, the burden is to PROVE that the provider knew or should have reasonably have known, of the increased risk - either through anything that might have been revealed through a background check, or from personal knowledge. If the guy had no history that would have been discovered, then any failure to complete a background check would be little more than an administrative violation, NOT a "causal" element in the perpetration of the crime. In other words, if there's ANY case to be made at this point, it's going to be against the perp himself.

    Doggie is absolutely correct that the tolling issue doesn't apply - because there is overwhelming evidence of knowledge of the incident in the form of a report to the police made at the time. This is far from a case of delayed discovery. Extending of SOL's doesn't in any way make a case "easier", it only allows that such a case CAN be pursued...but in fact, it makes it much HARDER in that the passage of time makes witness and victim testimoney much less reliable, physical evidence degrades or is destroyed, and a whole host of other issues. It's not anywhere near as functional of a "win" for victims as it is for politicians.

    She can absolutely seek a consultation with a personal injury attorney who specializes in these cases (referrals can be obtained from the state bar association), but as the criminal case was only ever going to be charged as a misdemeanor (and NOT a felony), it's incredibly unlikely that any evidence beyond a digital copy of the police report is in existance.

  7. #7
    Join Date
    Jan 2010
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    New Jersey
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    Default Re: My Daughter Was Sexually Abused at Daycare-Wants to Sue Provider for Negligence

    aardvarc,

    Do you think a problem lies within the 20 year old daughter already being out of the SOL, when a new law that is written and takes effect on July 1, 2011?

    I could see if the daughter was 18, well within the SOL and wanted to wait till she was 30 because of the new law.

    But now that the SOL has run and a new law written after the fact doesn't make any legal grounds for a civil suit.

  8. #8

    Default Re: My Daughter Was Sexually Abused at Daycare-Wants to Sue Provider for Negligence

    Even without the new law, there were provisions under the old law that could have applied and significantly tolled the SOL anyway....the major difference is that the old law required reasonable delayed discovery issues, whereas the new law doesn't (oversimplified, but that's the gist). The issue relevent to this poster is that when attempting to apply the statute applicable at the time the victim turned 18 (which is the statute that would control how long the clock was allowed to tick), there's no reasonable arguement for delayed discovery in this case.

    There's also the bigger issue - the poster is talking about wanting to sue a third party, rather than the direct perpetrator - and the SOL special conditions for tolling aren't outlined in the statute for third party cases, so the default SOL for third party liability applies, and it's WAYYYYYY too late. The victim either goes after the perp or no one.

  9. #9
    Join Date
    Mar 2009
    Location
    Key West, FL
    Posts
    2,350

    Default Re: My Daughter Was Sexually Abused at Daycare-Wants to Sue Provider for Negligence

    There is no way possible to sue a third party.

    Perhaps your daughter can sue, but I would expect it to be promptly dismissed due to the SOL. See what a local attorney thinks.

    You of course have no standing to do anything. It is up to your daughter. I certainly would not think she is going to have much credibility at this late date. Sounds like just looking for a payday.

  10. #10
    Join Date
    Jul 2011
    Posts
    5

    Default Re: My Daughter Was Sexually Abused at Daycare-Wants to Sue Provider for Negligence

    Quote Quoting Dogmatique
    View Post
    Lack of assets then should not have prevented a judgment from being attempted

    Lack of assets and the type of long shot case it was prevented any atty from taking the case on a contingency basis. As we were a young family just starting out, the 2500.00 retainer fee was prohibitive, so of course lack of assets prevented a judgement from being sought. And, incidentally, I now have a fairly well-known P.I. attorney who has taken the case on contigency and is fairly confident that an award for damages is forthcoming. In my state now, multiple precedents have been established and apparently it's not such a long shot anymore.

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