Liability of a non-registered nursery where a baby died from choking

A baby aged four months suddenly died while sleeping face down in a non-registered nursery. Parents claimed damages against childcare workers, the nursery operating company, the nursery manager, and the city government concerned. The following shows details of the case including the appeal court decision.

The court affirmed joint tort liability of the nursery manager, etc., recognizing childcare workers' liability on the ground that the baby's death had been caused by suffocation due to lying face down, not from sudden infant death syndrome¹ (hereinafter called "SIDS").

The judgment serves as a reference because the court considered detailed facts related to the baby's death in the non-registered nursery in a careful manner and determined that the death had been caused by suffocation. (Judgment by the Osaka High Court on November 25, 2015, Page 58 of Hanrei Jiho No.2297)

¹ Sudden death of a baby under one year old, unpredictable from a clinical history or health conditions and unable to identify any cause even by necropsy examination

Summary of the case

Plaintiffs, appellants:: X1 and X2 (victim A's parents)
Defendants, appellees:: Company Y1 (company which founded and operating the non-registered nursery, business of which was transferred from Y3), Y2 (Y1's CEO), Company Y3 (limited company which founded the nursery and transferred its business to Y1), Y4 (Y3's CEO and substantive manager of the nursery), Y5 (principal of the nursery), Y6 and Y7 (childcare workers)
Parties concerned:: A (baby died from the accident, child of X1 and X2), B (A's elder sister, child of X1 and X2), C (doctor who wrote the certificate and opinion stating that the baby had died from suffocation)

1. X1 and X2 applied for a monthly contract for nursery service after a trial period in early November 2009 and started to take A and B to the nursery on November 10, 2009.

Around 8:30 on November 17, X2 left A and B at the nursery. Before that, X2 measured A's body temperature. A had a normal temperature and showed no health problem. On that day, there were 17 babies/toddlers and 2 childcare workers (Y6 and Y7) in the nursery. None of the childcare workers had a childcare certificate or nursing license. Y6 had worked there for one month. Y7 had worked for less than 6 months.

In the nursery, a childcare room and a baby bedroom were divided by a partition. It was not possible to see the inside of the baby bedroom from the childcare room.

2. A started to cry in the baby bedroom around 10:30, and Y6 took A to the childcare room where A's sister B was cared. Y6 let A sleep on the floor. Between 10:30 and 12:30, Y7 was making lunch in the kitchen and feeding babies and toddlers one by one. Between 11:50 and 12:00, Y7 noticed that A was crying in a high-pitched voice and lying face down in the childcare room. Y7 took A to the baby bedroom and placed A back down on the bed. Later, Y6 found that A was lying face down on the bed without breathing. Immediately Y6 picked A up and called Y7. Y6 and Y7 gave back blows to A, poured water over A, performed artificial respiration, wiped A's snivel with blood. Then, Y7 called an ambulance at 13:03. A was taken to hospital by the ambulance, but A died at 14:13.

3. In May 2011, A's parents (X1 and X2) filed a suit against the childcare workers, the nursery manager, etc. for their joint tort at the Osaka District Court, alleging that Y6 and Y7 had been at fault in the accident.

The original court rejected the claim by X1 and X2 on the ground that it was not possible to recognize liability of the childcare workers, the nursery manager, etc. because it was reasonable to construe that A had died from SIDS, not from suffocation by occlusion of nose and mouth. Then, X1 and X2 appealed to the court of second instance. The biggest issue was whether A's death had been caused by suffocation due to occlusion of nose and mouth or by SIDS.

Reason

1. According to the following facts, it was inferable that A's death had been caused by suffocation due to occlusion of nose and mouth.

A was placed back down after being taken to the baby bedroom, and later A turned over in bed and slept face down. After that, nobody checked A's breathing.
A lied face down when A was found.
The mattress used by A dented about 2.5 cm when a 2.4 kg barbell plate equal in weight to A's head was placed on it.
A expectorated bloody secretions from nose and mouth, which left a stain reaching the third layer of the three-layered mattress 6 cm thick through the second layer of waterproof sheet. The stain size was about 6 cm x 5.5 cm on the cotton cover of the first layer and about 4 cm x 2 cm on the third layer. On this point, doctor C testified at the original court as follows: "The amount of secretions is considered too large for a baby aged four months and the liquid may have included some vomit. Since the liquid had some viscosity, it is reasonable to construe that the soft mattress was pressed down and the viscous liquid penetrated through. It appears that A was lying face down on bed." Based on the above, it was inferable that the baby had been lying face down.
On the day of accident, A was aged four months and did not have enough knowledge to avoid danger by lying on side before becoming hypoxic due to lying face down and blocking nose and mouth.

2. It was recognized that Y6 and Y7 had left A on the bed for some time without checking A's breathing, thinking A would be OK even if lying face down, which caused A's death from suffocation due to occlusion of nose and mouth. Childcare workers have a duty of care to watch babies to prevent suffocation due to lying face down and to place them on their back if they were lying face down. It may safely be said that Y6 and Y7 left A lying face down for some time, which caused A's death from suffocation due to nasal and oral occlusion. Y6 and Y7 breached a duty of care. The nursery manager and others shall bear compensation liability as employers of the childcare workers under Article 715 of the Civil Code.

Explanation

1. In the above case, a baby aged four months suddenly died while sleeping face down in the non-registered nursery and the court determined whether the death had been caused by suffocation (external cause) or SIDS. In the first instance, the Osaka District Court rejected the claim by X1 and X2, construing that the death had been caused by SIDS, not by suffocation. In the second instance, the Osaka High Court construed that the death had been caused by suffocation due to nasal and oral occlusion on the ground that the baby had been lying face down.

The Osaka High Court recognized that the testimony of Y6 and Y7 could not be applied to the case, finding the following details in a careful manner.

Because of the partition or wall, it was not possible to see the inside of the baby bedroom from the childcare room as well as from the kitchen.
On the day of accident, Y6 and Y7, who had less work experience and no childcare certificate, cared 17 babies and toddlers - Y7 was making lunch in the kitchen and feeding 17 babies and toddlers one by one, and Y6 cared children in the childcare room and checked babies' breathing in the baby bedroom, responding to visitors and telephone, cleaning the room, spreading out futons to prepare for nap time.
It appears that A was left for some time during death struggle because bloody secretions from the respiratory tract seeped deep into the mattress and there was much excrement in A's paper diaper.

Incidentally, the city government conducted an on-site inspection of the nursery several times and pointed out that the nursery was short of qualified childcare workers. With regard to the accident, X1 and X2 claimed compensation against the city government as well under Article 1-1 of the State Redress Act, alleging that non-use of the city's regulatory authority over the nursery was illegal. However, the Osaka High Court dismissed the claim, construing that the non-use of the regulatory authority could not be deemed illegal. (It was rejected by the original court as well.)

2. There have been many cases where a nursery's liability for a sudden baby death was examined. In these cases, the point of dispute was the cause of death. When the cause of death was determined to be SIDS, the liability was denied (Reference precedents 1-5). When the cause of death was determined to be negligence of childcare workers, the liability was affirmed (Reference precedents 6-8).

The above case serves as a reference because the court considered detailed facts related to the baby's death in the non-registered nursery in a careful manner and determined that the death had been caused by suffocation.

Reference precedents

Cases where nursery's liability was denied on the ground that the baby's death had been caused by SIDS

Judgment by the Kyoto District Court on September 22, 1994
(Page 149 of Hanrei Jiho No.1537)
Judgment by the Tokyo High Court on February 3, 1995
(Page 37 of Hanrei Jiho No.1591)
Judgment by the Kobe District Court on June 9, 1995
(Page 84 of Hanrei Jiho No.1564)
Judgment by the Kawasaki Branch of the Yokohama District Court on March 4, 2014
(Page 84 of Hanrei Jiho No.2220)
Judgment by the Osaka District Court on September 24, 2014
(LLI/BD, the original decision of the above case)

Cases where childcare worker's liability was affirmed

Judgment by the Tokyo District Court on March 23, 1998
(Page 72 of Hanrei Jiho No.1657)
Judgment by the Fukuoka High Court on May 26, 2006
(Page 279 of Hanrei Times No.1227)
Judgment by the Sendai High Court on December 9, 2015
(Page 86 of Hanrei Jiho No.2296)

Judgments