Indictment follows wrongful death lawsuit filed against “Om Baby” and owner, Jennifer Salley
When parents entrust their child to a daycare provider, they expect that the provider will provide a safe environment for that child and, thus, the child will not suffer an injury while away from home. In the vast majority of cases, this is exactly what happens on a daily basis. However, there are instances where an unscrupulous daycare provider will attempt to “cut corners” for any number or reasons. When this happens, the results can be tragic.
In this post, the daycare accident injury lawyer at The Doan Law Firm will present a particularly-disturbing case from the Knoxville, Tennessee area. He will then discuss the state laws that appear to be involved in this incident before closing with suggestions that will be of interest to parents who may find themselves facing similar, tragic, circumstances.
The Accident
The following sections of this post are based on online news coverage published by the Knoxville News Sentinel, WATE-TV, and WVLT-TV.
Around 10:00 a.m. on July 20, 2018 a child at Jennifer Salley’s Om Baby, a daycare/babysitter provider operated out of Salley’s home in West Knoxville, informed Salley that two children were in the swimming pool in the back yard of the residence. EMS personnel responded and transported the two children, later identified as 2-year-old twins Elyssa and Elijah Orejuela, to East Tennessee Children’s Hospital where Elyssa died later the same day. Elijah died at the same hospital two days later.
After the accident
Within days of the children’s death, WATE-TV aired “lapel-camera” footage of a confrontation involving agents of the state’s Department of Human Resources, Knox County deputies, and Jennifer Salley that occurred on May 17, 2018, two months before the children’s deaths.
In that incident, Salley was served with a temporary injunction ordering her to cease operating as an unlicensed daycare provider. Although the exact reasons DHS sought the junction are unknown, conversation between the DHS agents and Salley suggests that the issue was the presence of more than five children under her care at a time and thus she was violating DHS regulations. Salley signed a document indicating that she had received notice of the injunction but it isn’t certain if she attended a scheduled hearing on the matter a few days later.
In early June of 2019 the children’s parents, Amelia Wirand and Enrique Orejuela, filed a wrongful death lawsuit against Om Baby and Salley. In that lawsuit, they allege that Salley failed to implement measures that would have prevented the children from entering the above-ground pool and that she failed to provide proper supervision for the children while they were under her care.
On June 11, 2019, Knox County prosecutors announced that Salley had been indicted on two counts of criminally negligent homicide. Under Tennessee law, criminally negligent homicide is a type of involuntary (“non-intentional” or “accidental”) manslaughter that occurs when one's conduct demonstrates willful disregard for the potential consequences of their actions. Criminally negligent homicide is a “Class E” felony and, upon conviction, carries a penalty of from 1 to 6 years in prison and/or a fine of up to $3,000.
Discussion
As is the case with other states, Tennessee regulates daycare providers. In Tennessee, enforcement of daycare laws is the responsibility of the Department of Human Resources. Under Tennessee law, a privately-operated daycare center is not required to be licensed by the state if:
- daycare is provided in the child’s/children’s home or by a relative;
- daycare is provided to five, or fewer, children who are not related to the caregiver;
- the provider operates for less than three hours per day, or
- the provider is operating as a “drop-in” or a “parents’ day out” center for less than fifteen children.
Since there has been no information published regarding the number of children present at Om Baby on the day of the accident, we cannot say if Salley was complying with the earlier injunction ordering her to “cease and desist.” Although what transpired in the past is generally not allowed in a criminal trial, such a determination could play a role in the wrongful death lawsuit, where past behavior can be cited to demonstrate a pattern of unlawful / reckless conduct.
The key “test” of negligence is whether, or not, some action (or inaction) could have been reasonably foreseen to have caused harm to another? It is the responsibility of the plaintiff (the person filing a lawsuit) to prove negligence and the defendant (the person who is alleged to have been negligent) does not have to prove anything! There is one important exception to this rule.
If an act of negligence occurs while the defendant was in violation of a statutory (written) law, the plaintiff does not need to prove negligence because the court will allow the argument that the mere violation of a law is all that is required to demonstrate deliberate negligence! This is known as the doctrine of negligence per se and is accepted, to some extent, by Tennessee and every other state in the country.
Based on the information currently available, it appears the plaintiffs should have no difficulty establishing liability on the part of Om Baby and Jennifer Salley.
Contacting a daycare accident injury lawyer
When an accident occurs on a daycare’s property, there is usually no question as to who is responsible for a child’s injury. There are cases, however, where an injury occurs while children are on a daycare-sponsored “field trip” or similar activity that occurs “off-site.” In such situations, the services of an experienced daycare accident injury lawyer may be necessary if the victim is to receive the compensation to which they are legally entitled. One such lawyer is the daycare accident injury lawyer at The Doan Law Firm, a national law practice with offices located throughout the country.
When you contact the daycare accident injury lawyer at The Doan Law Firm, you case review and first consultation with our daycare accident injury lawyer are always free and do not obligate you in any way to hiring us as you legal counsel. If, after consulting our daycare accident injury lawyer, you decide that a lawsuit may be in order and that you would like for us to represent you in court, we are willing to assume full responsibility for all aspects for all aspects of preparing your case for trial in exchange for a percentage of the final verdict that we will win for you.
