Toddler Injured By A Hidden Nail In A Mall Playground

Attorney Answer

A business that opens a play area to the public owes the children who use it ordinary care, so yes — this is a claim worth pursuing. What it will turn on is not whether the nail was there. It is what the mall knew, or should have found, before your son did.

The governing rule is Cal. Civ. Code § 1714(a): "Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself." A shopping center manages its property, and a play surface installed for small children is squarely within that management.

That does not make the mall automatically liable. In a hazard case like this, the practical question is whether the owner knew about the defect or would have found it with reasonable inspection — which is why the mall's inspection schedule, its maintenance and repair records for that playground, and any earlier complaints matter more than anything else in the file. Those records are in the mall's hands, not yours, and they do not last forever.

One thing you should not worry about too much: being told your son fell, or that someone should have been watching him more closely. California apportions fault rather than using it as an on-off switch — under § 1714(a) as the Supreme Court applied it in Daly v. General Motors Corp., 20 Cal. 3d 725 (1978), a plaintiff's recovery is reduced to the extent his own lack of reasonable care contributed to his injury, not eliminated. How that reasoning applies to a one-year-old, and whether a parent's supervision is even weighed against a child's own claim, is a question to put to a lawyer.

Because the injured person is a child, two procedural points matter. Cal. Code Civ. Proc. § 372(a)(1) requires a minor to appear in an action through a guardian, a conservator of the estate, or a guardian ad litem appointed by the court — so you would bring the case for him. And a settlement of a child's claim is not simply signed; California requires court involvement before a minor's claim is compromised. Ask a lawyer about that before any adjuster puts a release in front of you.

What you can do

1. Write to the mall's management now and ask it to preserve, for that playground and that date: the incident report, inspection and maintenance records, repair records, and any security video. Send it by a method that gives you proof of delivery, and keep a copy.

2. Ask the mall in writing for a copy of the incident report your family gave that day, and for the name of its insurer or claims administrator.

3. Go back and photograph the play surface as it is now. If it has been repaired, photograph the repair and write down the date you took the pictures.

4. Collect and keep the emergency room records, the discharge paperwork, follow-up notes, and every bill and receipt, including travel.

5. Ask a local attorney about bringing the claim for your son through a guardian ad litem, and about the court approval California requires for a minor's settlement — before you sign anything for him.

Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. Cal. Code Civ. Proc. § 335.1 gives two years for an injury claim, and Cal. Code Civ. Proc. § 352(a) provides that where the person entitled to bring the action was under the age of majority when the claim accrued, the time of that disability is not counted — which is why a young child's own deadline is usually much longer than an adult's. Any claim that belongs to you in your own right is not extended by his age. Evidence disappears long before either deadline does, so have a local attorney check the dates and get the preservation demand out now.