Child’s Septum Burned While at Daycare
A three year old child found a button battery (about the size of an M&M) near his nap mat at daycare and inserted it in his nose where it became lodged. The button cell battery burned a hole in his septum and had to be surgically removed the following day. He now has a permanent hole in his septum.
The danger of button cell batteries has been known to child care centers for many years. The daycare center denied that the incident happened at its facility, but it was learned that the center had continuous video monitoring of all of its daycare rooms. They claimed to have taped over the surveillance tape after only 30 days despite prompt notice of the injury.
Due to the video surveillance being destroyed by the daycare owner, a spoliation motion was brought before the Court. The Court ruled that the jury would be instructed to assume the destroyed video surveillance depicted our client’s activities on the day of the incident. The Court also ruled that the jury would be instructed that the daycare destroyed the videotape surveillance of the classroom because producing that evidence would have been unfavorable to it. The case settled shortly after this Court ruling.