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Day care centers have a duty to render aid to children in their custody. The imposition of this duty is consistent with the minimum standards for daycare centers promulgated by the Texas Department of Human Resources. These standards require daycare centers to give first aid when needed, to call the physician named by the child's parents in the case of critical injury or illness, and to take the child to the nearest emergency room when necessary. A defendant is not required to take any action until he or she knows or has reason to know that the plaintiff is endangered, or is ill or injured. He or she is not required to take any action beyond that which is reasonable under the circumstances.
On December 19, 1980, the child named Howard Nemon was delivered to appellant daycare center by his parents, appellees David and Suzanne Nemon. The child was taken outdoors for twenty to twenty-five minutes of free play. Appellant employee Jackie Jones observed that the child played with various equipment. A short time later, she began lining the children up to return inside and she discovered the child unconscious and not breathing. She then summoned a co-employee, appellant Sanford Applebaum, who examined the child for ten seconds, and then called the operator for an ambulance. He rendered mouth-to-mouth resuscitation while waiting. Thereafter, the child was transported by ambulance to a memorial hospital. He was later transported to a children's hospital where he was pronounced dead. The child was brain-dead at the time he first received treatment at the hospital. Appellees parents sued appellants daycare and its employees for wrongful death claim for the death of their child. The trial court entered judgment for appellees and appellant challenged said judgment claiming that the evidence was insufficient to find that they were negligent in not providing lifesaving aid to the child or that the appellants' acts or omissions proximately caused the child's death.
Were the appellants' daycare and its employees negligent?
The court ruled that because appellants were paid for taking care of the child, they had a duty to give him reasonable assistance when he became imperiled and to follow the regulations of the Texas Department of Human Resources. In this case, the court found that appellants fulfilled their duty when they gave first aid to the child and have him taken to the hospital, and because appellants had no duty to provide medical assistance to the child or to prepare for a medical emergency before it occurred, appellants were not negligent. The court further held that there was no medical evidence that the appellants' acts or omissions proximately caused the child's death. Clearly, the court found no evidence to support the jury's findings of negligence and proximate cause against appellants. Therefore, the court reversed the judgment and rendered a take-nothing judgment against appellees.