assessment

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CHAPTER 3 TORT LIABILITY

The obligation of the school to provide a safe space can hardly be overemphasized. It is a legal principle with strong and widely spread roots in the ethics of our society. Adults are responsible for the care and protection of children; teachers and administrators are responsible for the care and protection of students. The courts demand a high standard of performance from educators in the area of student welfare. They also expect educators to possess a high standard of reasonable-person traits.

Changes in certain legal doctrines have modified the special status accorded to schools. For example, the doctrine of governmental immunity—protecting the public school from legal liability—has been judicially or legislatively abrogated in many states. Educators’ duty has been reduced by statutes that provide qualified immunity for employees or denote liability only for injuries resulting from willful or wanton misconduct; however, schools are still frequently given the same status and held, by the courts, to the same duty as any individual or corporation providing goods or services. The problem facing school districts and, ultimately, teachers and principals is not whether they are immune from lawsuits but whether they can develop solutions to minimize their legal liability.

Tort liability laws are the primary source for the definition of the educator’s basic responsibilities for duty and standard of care. Without an adequate knowledge of liability, educators cannot have a clear understanding of their status under the law. Although the major emphasis is on student welfare in this chapter, a principal’s responsibility not to be negligent also pertains to the welfare of faculty, staff, parents, and visitors. The basic concepts are the same. The sections in this chapter are restricted to the tort liability of educators for negligence, that is, the personal liability for injury to students or others for which school personnel may be held accountable under the law.

General

Considerations Related to COVID-19

COVID-19 has and will influence how school districts approach the issue of standard of care as they take measures to protect students and staff from contracting the virus. Although it may be difficult to prove how someone has contracted the virus, defending allegations of possible negligence would be expensive. The key will be the definitions of what is considered reasonable efforts to prevent the spread of the virus.

School districts must strictly adhere to HIPAA privacy guidelines but are also tasked with keeping the public informed about the spread of the virus among staff as well as students. Principals should follow local policy but also be very mindful of potential privacy law violations.

In some school districts, the use of facial recognition technology to be used for contact tracing has been considered. Facial recognition technology will bring emerging issues into the school environment and will be unsettled law as the technology grows.

Most states provide qualified immunity to some health-related areas, but it may be unclear how COVID-19 might apply in all circumstances. In addition, insurance policies may not cover liability related to communicable diseases, and it’s possible that those that do will be cost prohibitive at renewal due to COVID-19.

It is not known at the time of this publication what the Biden administration will propose in terms of COVID-19 assistance and guidance. There is disagreement regarding liability waivers with some asserting that the waivers will lead school districts to neglect key safety measures and unsafely cut costs, while others say that without such waivers, school districts cannot operate efficiently.

There is no question that COVID-19 has increased costs and changed operating procedures, many of which will remain in place even as the pandemic subsides. Schools will increase costs of cleaning, transportation, insurance, and other expenses while at the same time face the prospect of losing students and funding due to decreased enrollments.

There is also a likelihood that even when conditions return to a more familiar normal, virtual learning will remain and be used in greater numbers than before, as more choose to take advantage of distance learning. What this means in terms of liabilities remains to be seen; however, whether students are learning face to face or virtually, schools will still be expected to achieve student learning outcomes. And the effects of COVID-19 on student achievement and future success are still a great unknown. There will likely be some litigation related to the closure of schools should there ultimately be significant achievement deficits blamed on such closures.

General

Suggested Guidelines for Practice

Principals are reminded that even though fault may rest on individual faculty or staff for their actions, depending on the response you take to such actions, the accountability could rest with you. Principals must not increase their own liability through improper action or lack of action in response to incidents that occur on their campus. In addition, often it is not the incident that occurs that becomes the story in the eyes of the public, but instead it is the response by the administration that becomes the focus. It is one thing to be part of a story, it’s quite another to actually be the story.

Ensure that a higher standard of care and supervision is evident in laboratories, in physical education classes, in contact sports, on field trips, and in areas of student congestion in the hallways.

Ensure that there is a proper supervision plan before the school day begins or after the school day ends and continually evaluate the plan, revising as needed.

Ensure that teachers understand that foreseeability of harm is a critical element in determining negligence in a given situation.

Ensure that personnel take into consideration a student’s special needs or limitations, abilities, age, and pre-existing medical conditions when making supervisory decisions and planning classroom activities.

The purpose of this chapter is to help understand how to minimize risks for others as well as reduce the risks inherent with the job responsibilities of principals.

SECTION A. THE LAW OF TORTS AND THE CONCEPT OF NEGLIGENCE

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The law of torts is difficult to define and difficult to understand. Because tort law is essentially the result of judicial decisions—case or common law rather than statutory or legislative law—the study of torts can be inconclusive in answering specific inquiries. Court decisions are primarily of two sorts: (1) interpretation of constitutional and statutory law and (2) application of common law principles. These principles are applied when a particular set of circumstances has not been legislated on and the rights of the parties must be decided by the court on general principles handed down over the years.

The Law of Torts

A tort is defined as an actionable wrong against the person, property, or reputation of another, exclusive of a breach of contract, which the law will recognize and set right. Torts are historically classified into three categories:

1. The direct invasion of someone’s legal right (e.g., invasion of privacy) 2. The breach of some public duty that causes some damage to an individual (e.g., denial of constitutional rights) 3. The violation of some private obligation that causes some damage to an individual (e.g., negligence)

The underlying concept of torts involves the relationship between individuals. Under our system of law, individuals have the right to be free from bodily injury whether intentionally or carelessly caused by others. However, societal changes have caused the courts to define new legal responsibilities between individuals with each litigated verdict. Negligence is the main cause of tort liability suits filed against educators, and due to their more direct contact with students, teachers and principals comprise the class of school employees most likely to have suit brought against them. Judgments in negligence suits can be financially and emotionally crippling.

Tortious actions speak directly to the professional educator through the principle of in loco parentis. Although the in loco parentis doctrine is continuously challenged, the current interpretation assigns definite responsibility to the school for the welfare of each student it serves in the absence of the student’s parent or guardian. With this assignment, society legally assumes that, during the time the student is away from home, the student’s interests, welfare, and safety are directed by responsible adults trained as teachers and administrators. Because elementary and most secondary students are legally required by law to attend school, courts usually review very carefully any alleged breach of normally expected duty and standard of care by educators. Failure to meet such duty and standard of care is negligent, and the courts may find the educator guilty of a tort.

Within the framework of the tort of negligence, this chapter examines the standards and relationships inherent in the following areas: duty and standard of care, proper instruction, proper supervision, proper maintenance, field trips, postinjury treatment, athletic liability, and spectator safety. Both the framework of negligence and the standards and relationships inherent within this framework are examined under the following concepts, described and defined as follows:

The Concept of the Reasonable and Prudent Person

A reasonable and prudent person, in the eye of the court, is a person who

Has physical capabilities comparable to the defendant’s

Is of normal intelligence, perception, and memory

Has a minimal level of experience

Possesses any superior skills that the defendant possesses or presents as possessing

School administrators and teachers hold college degrees that denote possession of specialized skills and superior knowledge of the teaching and learning process, methods of instruction, and the education environment, and they present themselves to the community as possessing such superior knowledge and skills. School administrators and teachers are, therefore, held to a higher standard of care when fulfilling their professional roles than the average citizen would be in a similar circumstance.

To resolve the question of reasonable standard of care, courts use the model of a reasonable and prudent person. This hypothetical ideal of human behavior embodies the community’s ideals and possesses all the special skills and abilities of the defendant. Court dicta provide this generic description:

The defendant is not to be identified with any ordinary individual who might occasionally do unreasonable things; he or she is a prudent and careful person who is always up to standard. It is not proper to identify him or her with any member of the jury who is to apply the standard; he or she is rather a personification of a community ideal of reasonable behavior, determined by the jury’s social judgment.

This abstract being, conceived in the law’s imagination, performs under the question of foreseeability.

The Concept of Foreseeability

This concept addresses the “degree to which the defendant could have or should have reasonably been able to anticipate the risk of injury or harm to the plaintiff that might result from the action or inaction” (Alexander & Alexander, 1998, p. 329). Foreseeability regarding the risks inherent in an education setting is greater for educators, because of their superior knowledge, special skills, and professional experience in working in an education environment, than it would be for the average citizen, who is not professionally trained and experienced as an educator. If the educator could have or should have foreseen or anticipated an accident, the failure to do so may be ruled as negligence.

The concept of foreseeability expects the educator to perform as a reasonably prudent person of similar training and circumstances should perform. This degree of care is based on the standard equivalent of the age, training, maturity, and experience, as well as any other related characteristics of the educator. The law does not require the educator to be able to see everything that might appear in the immediate future, and the courts do not require the educator to completely ensure the safety of students. Courts do, however, expect educators to act in a reasonable and prudent manner. If the ordinary exercise of prudence and foresight could have prevented an accident, courts have ruled educators to be negligent when they have not avoided a foreseeable danger to students, personnel, and patrons.

The Concept of Standard of Care

The standard of care is the degree of care necessary to protect students from foreseeable risk of injury or harm, based on the particular circumstances and the age and mental and physical capabilities of the students. The standard of care required is higher when the students are young and immature. The standard of care required is also higher when the students have diminished mental, learning, or physical abilities. The illustration in Figure 3.1 demonstrates the inverse relationship between duty and standard of care and the age of the student.

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COVID-19 has dramatically influenced thinking regarding the standard of care required to prevent the spread of the virus within a school. Clearly, if school districts completely ignored the pandemic and carried on all school operations as they did before the rise of the pandemic, there would be reason to conclude there was an insufficient standard of care being provided for both students and faculty. It’s a dilemma, however, to try to understand what needs to be done on the opposite end of this problem, because schools also face criticism from the public for “going too far” with their prevention measures.

Evolving Issues

COVID-19 raises foreseeability issues because the likelihood of students and staff contracting the virus absent precautionary measures is clearly a foreseeable outcome. Courts have been cognizant of burdens placed on educators when determining liability, but such burdens do not relieve educators of the responsibility for their actions or inactions. Educators are responsible for any harmful consequences of their conduct.

Principals and all educators must recognize that over time new areas of focus are created or arise from increased knowledge and awareness. For example, today more attention is given to head injuries and concussions related not only to athletics, but to concussions from all causes. The potentially fatal consequence of food allergies is a growing issue. New antibullying laws mandate the protection of all students. Additionally, the rapid changes in technology availability and usage create situations for principals that were nonexistent only a decade ago.

The Concept of Intentional Torts

An intentional tort is committed if a person, with or without malice, intentionally proceeds to act in a manner that impairs the rights of others. Intentional tort actions in the education setting generally involve charges of assault and battery. Assault, simply defined, consists of an overt attempt to place another in fear of bodily harm; no actual physical contact need take place. However, when an assault results in physical injury to a person, then battery has been committed.

The Concept of the Age of Plaintiffs

This concept, based on the Rule of Seven, is often used to determine the liability for negligence. This legal doctrine requires the court to examine a student’s age in determining negligence. Children are expected to exercise a degree of care for their own safety in proportion to their age, capacity, experience, and intelligence. Historically, courts have held that children from birth to age seven cannot be considered negligent under the law. Such children do not realize or understand the degree of care that must be exercised to prevent injury to themselves. Teenagers, on the other hand, are expected to have developed a general understanding of the care required for their own safety.

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Description

Figure 3.1 The School’s Duty and Standard of Care as Related to Student Age*

Source: Shoop, R. J., & Dunklee, D. R. (1992). School Law for the Principal: A Handbook for Practitioners, p. 157. Allyn & Bacon.

Common Defenses in Tort Cases

In tort cases that involve accusations of negligence, the first defense would be whether the incident was an unavoidable accident. Additionally, questions would surround the duty owed to the parties involved; whether the action or inaction of the defendant was the proximate cause of the injury; and whether or not there were actual injuries.

Most states have statutes that specify timelines and notice requirements that must be met in order to proceed with a claim, and if those requirements are not met, the claim will not be allowed to move forward in court. Typically states will have statutes of limitations for filing claims, and when the clock starts between an alleged injury

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and the filing of a claim can be an element of dispute. An example of this requirement is seen in a case where a bricklayer was injured on a construction site but did not realize the extent of his injuries until a required second surgery a year later. A court dismissed his case based on failure to file a timely notice of claim. Although he filed for workers’ compensation when the accident occurred, he did not file a court case until the time to do so expired, and the court noted that he understood the extent of his injuries when he filed the workers’ compensation claim (Grajko v. City of N.Y., 57 N.Y.S. 3d 11 (N.Y. App. Div. 2017)).

Notice of claim requirements frequently become involved in cases of sexual abuse of minors, raising the issue of when accrual begins—when such abuse occurs or when perhaps years later a victim recalls abuse in counseling or for other reasons. Many states have changed the statute of limitations in such cases to a greater number of years or to even an unlimited number of years.

In most states, claims against school boards must be filed within what could be a short amount of time in order to meet a timely notice of claims. School boards are given time to conduct investigations, collect evidence, and perhaps settle a claim before it reaches a courtroom.

Finally, regardless of the merits and strong evidence in a claim, missing a statutory deadline may be grounds for dismissal of the case. The bottom line is that following the statutory requirements is essential for all parties involved.

Other common defenses are included in the following descriptions:

The Concept of Unavoidable Accident

An unavoidable accident is an event that occurs without fault, carelessness, or omission on the part of the individual involved. While expecting educators to display a high level of care in the performance of their duties, the courts recognize that accidents happen when no negligence has occurred.

The Concept of Assumption of Risk

This common legal defense against negligence is based on the general legal theory that no harm is done to one who consents. Although the consent may be expressed or implied, the legal theory is based on one’s ability to understand and appreciate the dangers inherent in the activity. Even though the student voluntarily placed themselves in a position of danger, the defense must show that the student understood the danger, had foresight in regard to the consequences, and accepted the danger. Assumption of risk varies by the activity involved, with high-contact sports being an example where there are elements of known risk involved.

The Concepts of Contributory Negligence, Causal Relationship, and Comparative Negligence

When an injury to a student is sustained as a result of the injured student’s own negligence, and this negligence is proved, then the student has contributed to their own injury. Of course, the age and ability of the students involved is a factor to consider regarding the degree to which they contributed to their own injury. In addition, when a student disregards the instruction, warning, or advice of an educator, the student can be held liable for their own injury. To counter a charge of contributory negligence, the student must establish a causal relationship between the negligence of the educator and the injury.

The majority of states permit some recovery under the concept of comparative negligence, in part because many hold the view that it is rather drastic that there would be no damages awarded at all if there is any degree of contributory negligence involved. This legal doctrine prorates the damages to the degree of negligence determined by the court for each party found liable for negligence.

Qualified Immunity

In most states, government entities are provided qualified immunity by statute. The concept is derived from sovereign immunity, and although the United States was not founded on the principle of the divine right of kings, sovereign immunity provides government agencies from liability protections in the performance of their duties. The purpose of immunity is to provide some level of protection for educators to make decisions without being questioned or worried about every possible choice they make while they perform their job duties. Such immunity has a long history, but is also controversial, and more states have moved away from longstanding immunity protections. Similar controversy surrounds immunity afforded to law enforcement practices.

Immunity is not unlimited, and most states distinguish between what are known as discretionary acts and ministerial acts. Discretionary acts are those that require judgment and may afford a degree of qualified immunity. Ministerial acts are those that are required by law or by policy, and failure to perform ministerial acts is not afforded qualified immunity. Frequently in litigation, whether a party was performing a discretionary or ministerial act is a matter of dispute.

As an example, imagine a scenario where a track coach preparing for practice determines that written policy requires athletes to remain indoors if a thunderstorm is approaching. If the coach ignores the policy, the coach might be in violation of a ministerial duty written in the guidelines. Should a student get hit by lightning, it would be likely that the coach would not be afforded qualified immunity because of ignoring ministerial duties.

However, if the athletes remain indoors until the storm passes and the coach then uses his judgment that the danger has passed, the coach was likely performing a discretionary duty. If an athlete were to then go outside but slip on the wet track, it is likely that (absent other factors) the coach would be afforded a level of immunity because in his judgment it was safe to go outside and he was not in violation of any policy when the decision was made.

SECTION B. THE CONCEPT OF NEGLIGENCE AND ITS APPLICATION TO DUTY AND STANDARDS OF CARE

Negligence is a word used commonly to cover a variety of behaviors, actions, and inactions. However, in the legal world, the term is more narrowly defined as follows: The failure to take reasonable care to avoid commissions (actions) or omissions (inactions) that one can reasonably foresee would be likely to injure another. Stated a bit differently, negligence is the failure to exercise the degree or standard of care for the safety or well-being of others that a reasonable and prudent person would exercise under similar circumstances.

The Concept of Negligence

Negligence has been defined as conduct that falls below the standard established by law for the protection of others against unreasonable risk or harm. Four elements must exist to sustain a valid claim of negligence:

1. There must have been a duty to protect. Duty is an obligation that derives from a special relationship between the parties involved (teacher and student, principal and teacher, principal and student, and other parties such as parents and visitors). It is the special relationship that creates the duty. While there may be a moral obligation to assist someone who trips and falls in a store parking lot, a person who just walks by and witnesses the fall does not have a duty owed to the person because they don’t have a special relationship. Some states have “good Samaritan” laws that shield from liability those who render aid to those with whom they have no established duty.

2. A failure to exercise a standard of care must have occurred. A failure to exercise a standard of care is determined by measuring the actual conduct against the conduct of a reasonable person. The standard of care is relative to the need and to the occasion. What is proper under one circumstance may be negligent under

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another. 3. The conduct must have been the proximate cause of the damage. 4. An actual loss (injury of some kind) must result.

The law recognizes the duty of due care that one person owes to another. It requires a certain standard of conduct for the protection of others against unreasonable risks. One has a legal duty to act as an ordinary, prudent, reasonable person in the circumstances. Such duty can be specified by statute or as a matter of common law. The duty and standard of care imposed on school districts demand that the responsibility for protecting the safety of students and employees be accepted and fulfilled. In our litigious society, principals need to recognize their potential liability for negligence.

Suggested Risk Management Guidelines

Ask the following questions in any situation in which a person claims to have suffered an injury (see also Figure 3.2):

1. Did the defendant have a duty to the plaintiff? The defendant must have a duty to the plaintiff. Plaintiffs, in actions addressing the school setting, usually have little difficulty in proving that the defendant teacher or principal owes the student a duty.

2. Did the defendant exercise a reasonable standard of care in their actions? The defendant must have failed to exercise a reasonable standard of care in their actions. This area is usually the major point of contention, that is, whether or not the educator involved exercised a reasonable standard of care. What makes a reasonable standard varies from person to person and from their own areas of expertise, training, job description, and the circumstances of the situation.

3. Were the defendant’s actions or inactions the proximate cause of injury to plaintiff? The defendant’s actions must be the proximate (direct) cause of the injury to the plaintiff. Even in situations in which a recognized duty is breached by the failure to exercise a proper standard of care, liability will not normally be assessed if there is no causal connection between the actions of school personnel and the injury. Actions that may initially appear to be the proximate cause of the injury may in fact not be supported upon investigation. The action must be a substantial cause of harm and absent any intervening act that may have occurred.

4. Did the plaintiff suffer an actual injury? The plaintiff must prove that they suffered an actual injury. Actual injury and proximate cause are usually a matter of fact. For liability to be assessed under proximate cause, negligent conduct of school personnel must be the proximate or legal cause of the injury.

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Description

Figure 3.2 Risk of Negligence

Source: Shoop, R. J., & Dunklee, D. R. (1992). School Law for the Principal: A Handbook for Practitioners, p. 270. Allyn & Bacon.

Negligence may occur in one of three ways: nonfeasance, misfeasance, or malfeasance.

1. Nonfeasance is the failure to act when there is a duty to act. Nonfeasance is an act of omission, such as passive inaction, by which an injury occurs due to the lack of protection the law expects of a reasonable individual. In order for nonfeasance to result in liability for negligence, a duty to take positive action or to perform a specific act must be established. This duty may be established by a legal statute or by the relationship (e.g., principal, teacher, and student) between the parties involved.

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2. Misfeasance is acting in an improper manner. Misfeasance is taking an improper action when there is a duty to act and may be either an act of omission or an act of commission.

3. Malfeasance is acting, but guided by a bad motive. Malfeasance is an illegal act that should not be performed at all. It occurs when the individual acts beyond the scope of duty. A hypothetical case may illustrate the salient points best. Assume that a teacher administers corporal punishment to a student even though school district policy prohibits a teacher from administering such punishment. The student is injured as a result of the punishment and brings charges against the teacher and others. The court would likely rule for the student because the act was illegal under school district policy.

Examples of Management Cues

Imagine the following scenario during outdoor recess at an elementary school. A group of teachers tasked with supervising recess are standing together talking in a location where they can see the entire playground. Standing from about twenty-five yards away, a teacher sees one of his fifth-grade students climbing the six-foot chain link fence that surrounds the playground. Without question, the teacher has a duty owed to the student who may be injured by climbing the fence. The questions will surround the standard of care exhibited in the following scenarios; if any action by the teacher was the proximate cause of any injury; and if there was an actual injury.

Scenario 1: The teacher observes the student climbing the fence and yells out to him to get off the fence. The student complies.

Scenario 2: After the student gets off the fence, a few minutes pass by and the student climbs the fence again. This time the teacher observes the student but does not yell at him to stop and ignores the behavior. The student gets to the top of the fence, attempts to walk across the top, and falls, breaking his arm.

Scenario 3: When the teacher first notices the student climbing the fence, he yells at the student to stop, and when the student ignores his request, he walks over to the student and tells him directly to get off the fence, and the student complies.

Scenario 4: When the teacher first notices the student climbing the fence, he yells at the student to stop and he does not comply; the teacher then yells at another student who is closer to the fence to tell the student to get down. However, instead, that student pushes the first student off the fence and the climber is injured when he hits the ground.

Scenario 5: The teacher becomes annoyed with the student ignoring his commands to get off the fence and goes over to the fence. When the student still does not comply, the teacher shakes the fence, causing the student to fall and injure himself.

In each of these scenarios, there is no question that the teacher owed a duty to the student because he was required to supervise the playground. It was also foreseeable that the student could be injured climbing the fence. The question surrounds what a reasonably prudent and similarly situated adult (a teacher) would do in each of the scenarios. What actions would likely not be what a similarly situated teacher does? Does the fact that in Scenario 4 it was a student who pushed the climbing student off the fence make any difference regarding the potential misfeasance of the teacher? Was it malfeasance in Scenario 5 when the teacher shook the fence since it should have been foreseeable that shaking the fence might cause the student to fall? In fact, what are the implications if the teacher actually wanted the student to fall when the teacher shook the fence?

The above scenarios are not at all out of the ordinary of what happens or could happen in any school on any given day. Should something like this occur, principals would be tasked with investigating the incident and taking any appropriate action if the teacher was responsible in any way for the incident.

As a simple example to understand the concept of duty, imagine the entrance to the school having pools of water from melted snow that has been tracked into the building. A parent enters and nearly falls. She notices a bucket and mop that have been placed by the door, but proceeds to the office. Later a school custodian enters the building and he too nearly falls, but he walks past the bucket and enters his office because it was his morning break time. Minutes later, a student enters the building, slips, and breaks an arm.

In this scenario, the parent owed no duty and had no obligation to use the mop to remove the water. However, the custodian would have a duty based on his job description to attempt to remedy the slick floor. (Note: this example is not intended to imply a possible determination of any outcome regarding the custodian, but is merely to show how duty applies differently in the same situation to different people.)

The Concept of Duty and Standard of Care

There are two basic types of duty. The first type exists when the duty is inherent in the situation. This includes nearly every situation in which an educator has the responsibility to supervise a student. The second type of duty exists when a person voluntarily assumes or creates a relationship in which no previous relationship existed. An assumed duty exists when an educator acts in a way that leads parents or students to reasonably assume that a supervisory relationship exists.

The school district and the personnel it employs owe a legal duty to protect students, employees, and visitors from unreasonable risks of injury. The duty to meet a particular standard of care stems from two primary sources:

The duty may be inherent in the situation or required by statute. Nearly every situation in which an educator engages has an inherent standard of care arising from it. These duties derive from the educator acting in loco parentis, acting as a professional, or acting as the administrator. Generally speaking, the school will owe a duty of ordinary care to all personnel, children, and adults involved in educational pursuits, academic or otherwise, if sponsored under the school’s authority. This standard is based on an objective test consisting of the standard of conduct demanded under the circumstances, that is, “the reasonably prudent person.” The ordinary care standard takes into consideration the risk factor that may be apparent and the circumstances of the situation. The defendant’s capacity—based on age, intelligence, knowledge, skill, and so forth—to handle those circumstances is also considered in certain cases.

An educator may voluntarily assume a duty. A person who does not have a legal duty to meet a particular standard of care may incur one by voluntarily creating a relationship with someone else. Assuming a duty commonly occurs in a situation that many schools face: students arriving well before the start of school and staying well after the end of school. Although the principal disapproves of this practice, the principal ignores it, and although aware of the need for supervision, does not provide any. The principal continues to remind parents of the fact that no one is available at the school to provide supervision and that their practice of dropping children off so early in the morning is dangerous. Such a warning appears in the school’s back-to-school summer letter as well as in other principal–parent newsletters throughout the school year. But when schools take no action when students arrive thirty to forty minutes prior to the stated arrival time, they may have voluntarily assumed a duty to those students. The “official” arrival time in such instances may not be what is posted, but instead what the school has allowed it to be.

The assumption of duty also plays a role when arming teachers or other staff with weapons. As schools adopt this practice, questions are raised concerning whether school districts have assumed an increased duty to protect students by having nonlaw enforcement personnel armed with weapons. Other questions regarding their training and a protocol for the use of those weapons undoubtedly arise. For example, would a person educated and certified to perform the duties of a teacher, including protecting and nurturing students, be expected to have the same duty and standard of care if, at a second’s notice, that same person is expected to perhaps shoot one of their students?

Liability results most often when school personnel fail to meet that reasonable standard of care (breach of duty) while instructing, supplying equipment to, and supervising students. Breach of duty is determined, in part, based on the nature of the activity for which the educator is held responsible. Various school activities require different levels (standards) of care and duty. Questions normally posed by courts regarding an alleged breach of duty and standard of care are

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Whether the conduct of school personnel met the reasonable person standard required in a given situation

Whether school personnel should have foreseen possible injury

The fact that a student is injured in a particular situation does not necessarily imply that a breach of duty has occurred. School personnel are not insurers against all possible harm. They are, however, expected to take reasonable steps, based on inherent duty to students, to prevent harm that is reasonably foreseeable. Failure to act in this instance would constitute a breach of duty.

In summary, principals should become aware that educators have been found financially responsible for their professional actions when it has been proven that their actions or inactions led to injury of students or adults. They are responsible for any harmful consequences of their conduct.

Foreseeability and proper instruction that takes into consideration the age, abilities, and needs of students is also a critical factor and is often cited in cases where students are unsupervised in nearly any type of situation. The reasonable person standard is always measured against the actions taken, or not taken, in a given situation.

Finally, keep in mind that educators have been found liable when they use excessive force against a student, especially when such force goes beyond what is allowed by district policy. Educators have also been found liable in bullying and harassment cases where it can be demonstrated they did not protect students or they demonstrated deliberate indifference to the bullying and harassment.

Establishing Guidelines

Establish professional standards that take the very basic meaning of duty and standards of care (i.e., application to all citizens) and apply it specifically to the education arena. Simply stated, many problems would be avoided and possible tragedies averted if educators were steadfastly mindful of the following:

Do not leave students unattended.

Provide age- and ability-appropriate instruction/supervision.

Do not put students in privately owned vehicles.

Know and comply with policies, including school board policies, faculty and student handbooks, crisis management plans, and all other district documents.

Provide guidelines that can be used both in establishing sound practices in the area of duty and standard of care and as definitive standards in measuring duty and standard of care of educators in a school setting. Such guidelines should be foundational but considered critically important, enforced, taught during professional development, and monitored for compliance and should serve as the underlying structure for any other suggested guidelines.

SECTION C. NEGLIGENCE, DUTY, AND STANDARDS OF CARE IN SCHOOL ACTIVITIES

General

The wide range of activities in which educators are regularly engaged with students and the public creates multiple areas of duty and standard of care. This section looks at the principal’s duty and standard of care with regard to proper instruction—ensuring that students are adequately warned of dangers inherent in an activity.

Proper supervision—ensuring that an appropriate number of capable adults are providing an adequate level of oversight to protect students and others from foreseeable danger

Proper maintenance—ensuring that equipment, facilities, and grounds are kept in proper repair and pose no foreseeable safety hazards to students and others

Field trips—maintaining the same duty and standard of care that would exist if students were on the school premises

Postinjury treatment—taking appropriate care of a student or other person who is injured on school grounds or while engaged in a school-sponsored event

School athletics and spectator safety—ensuring that participants are properly selected, instructed, and supervised; that equipment and facilities are maintained and safe; and that proper medical attention is available in the event of injury to participants or spectators

The following addresses each of these areas of potential liability.

The Application of Negligence Law to Proper Instruction

Cases involving various aspects of instruction frequently come before the courts. The most common complaint is that the student did not receive adequate instruction (how to or how not to do something), and as a result of inadequate instruction, the activity caused physical harm to someone. The courts tend to favor those educators who have provided adequate instruction in the proper use of equipment and methods of safety and who have warned students of the dangerous nature of any activity in which injury might occur. Failure to do either—instruct or warn—could be cause for establishing liability for negligence. Though not nearly as common, there have also been cases in which plaintiffs have claimed harm to the intellect—commonly referred to as education malpractice—as a result of negligence due to improper instruction.

Authorities agree that instruction involves the teaching of a particular skill as well as instilling in the student the proper behavior for individual and class safety. In Laveck v. City of Janesville (1973), the court stated,

The teacher occupies a position in relation to his pupils comparable to that of a parent to children. He [sic] has a duty to instruct and warn pupils in his custody of any danger which he knows or in the exercise of ordinary care ought to know . . . and to instruct them in the methods which will protect them from these dangers. A failure to warn students of such danger or to instruct them in the means of avoiding such danger is negligence.

Educators are expected to select activities appropriate to students’ ability to perform and understand and to take into consideration the students’ sizes, ages, skills, conditions, or special needs. When an activity entails risks to students, it is not sufficient merely to inform or warn of risks; students must also understand and appreciate the risks. Appreciation is influenced by factors such as experience, mental ability, and the obviousness of the danger.

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A lack of ability was alleged, in Govel v. Board of Education in the City of Albany (1962), when a junior high school girl was injured during a soccer game. The teacher stated she believed that children were “naturally skilled in running and kicking and did not need an extended session on such skills.” The court ruled against the teacher, asserting that “the preparation of students to participate in such an activity required more than a superficial assessment of skill in running or kicking.” In similar litigation involving the case of Ehlinger v. Board of Education of New Hartford Center School District (1983), negligent instruction was ruled when a teacher failed to follow state guidelines for instructing students to take necessary precautions during a physical fitness speed test, and a student was injured.

Age and Condition of Participants

Educators have a responsibility to tailor required activities to the age and condition of students. In Luce v. Board of Education (1956), a teacher was found negligent for failing to consider the history of a student’s physical condition. The teacher had required an eleven-year-old student who had previously suffered two broken arms to participate in a “rough” activity. The student fell and broke her arm again. The teacher knew of the student’s history and had been asked to excuse her from “rough” activities.

Educators must be aware of health issues of students that may impact how they provide instruction and supervision. Food allergies are not merely inconveniences that students must accept, but instead potentially life-threatening situations. Since food products are brought to school each day and shared between students, policies should be put in place to know and identify students with food allergies and to monitor and control items that are brought to school.

Equipment and Materials

Activities that require the use of equipment often give rise to allegations of improper instruction. Although school personnel have a duty to provide appropriate instruction to protect students from unreasonable hazards, students must also act in a reasonable manner. School personnel will generally not be found negligent if students completely disregard the instructions and warning provided as long as they were also properly supervised.

A thirteen-year-old student built a model volcano at his home, then took it to school for a demonstration in the classroom as a science project. He was injured during an encore performance for his schoolmates at the bus stop on the periphery of the school grounds. Although the boy’s father had helped him build his volcano, the student claimed that the school was “negligent in supervision, instruction, and warning, since the project constituted academic homework.” The court, in Simmons v. Beauregard Parish School Board (1975), agreed and held for the student, citing improper instruction as well as improper supervision.

In Roberts v. Robertson County Board of Education (1985), a student’s misuse of a drill press resulted in a serious head injury to a classmate. The teacher had not instructed the students on the use of a specific drill bit, had not warned of dangers associated with its improper use, and was absent from the shop during the use of the drill. The court found the teacher negligent.

Age, Mental Abilities, and Appreciation of Risk

When a participant is inexperienced, the teacher is required to make a greater effort to communicate any risk. Educators have been found negligent for improper instruction when the student was shown to have had inadequate knowledge to complete the task assigned.

In Brevard County v. Jacks (1970), a student with an intellectual disability drowned in a swimming area that had a sudden drop off. Although the area was normally marked by a rope-and-buoy line, the line was not in position on the day of the accident. Instead, there was a sign warning, “Swim at Own Risk.” The court ruled that the student was unable to appreciate the dangers of deep water in a swimming area.

Education Malpractice

In the past, almost all cases filed against educators for inappropriate instruction that reached the appellate court level involved physical harm to the person rather than harm to the intellect. However, in recent years, plaintiffs have initiated litigation that tests intellectual harm, which can also be related to educational opportunity. So although this chapter limits its discussion to physical harm, it is advisable for the prudent educator to be aware it is likely that when a strong case appears in a more receptive judicial climate, the results may be different from those of past cases in which the courts have generally held to the dicta of the California Court of Appeals in Peter W. v. San Francisco Unified School District (1976), which stated,

Unlike the activity of the highway or marketplace, classroom methodology affords no readily acceptable standards of care, of cause, or injury. The science of pedagogy itself is fraught with different and conflicting theories of how or what a child should be taught. . . . Substantial professional authority attests that the achievement of literacy in the schools, or its failure, is influenced by a host of factors which affect the student subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized, but not identified. [Holding schools accountable] would expose them to the tort claims—real or imagined—of disaffected students and parents in countless numbers. They are already beset by social and financial problems which have gone to major litigation, but for which no permanent solution has yet appeared. The ultimate consequences, in terms of public time and money, would burden them—and society—beyond calculation.

Although related more to alleged lack of resources and not negligent instruction, two recent cases illustrate emerging areas that relate to students receiving appropriate education. In Gary B. v. Snyder , 329 F. Supp.3d 344 (Dist. Court. E.D. Mich. 2018), the U.S. Court of Appeals for the Sixth Circuit ruled that children have a constitutional right to a minimum basic education. The suit alleged that the conditions of public schools in Detroit lacked enough resources and opportunities that the schools were “functionally incapable of delivering access to literacy” compared to other school districts in the state. The basis of the case was the right to literacy and could form the basis of other such challenges in the nation. After the ruling of the Sixth Circuit, a settlement agreement was reached that included proposed legislation to provide for literacy-related programs in the Detroit Public School Community District.

In a case that overlaps Gary B., a case from Rhode Island is on appeal at press time for this book. In Cook v. Raimondo, Case 1:18-cv-00645-WES-PAS (Dist. Ct. RI 2020), the argument presented by the plaintiffs revisited those presented in San Antonio v. Rodriguez in 1973. The plaintiffs assert that there is a Fifteenth Amendment guarantee that all citizens have a right to vote, and under the First Amendment a right to the exercise of free speech, and as Justice Thurgood Marshall noted in 1973, a person cannot exercise those rights without some level of basic education. The central theme of education being necessary for citizenship and democracy is weaved into the argument. An interesting note is that one of the plaintiffs in the case is a child who at the time was in prekindergarten, providing potentially lengthy standing in the case as well as hoping for future benefits should the case be found in their favor.

The following guidelines relate specifically to avoiding the risk of exposure to liability for education malpractice:

Develop exemplary standards of practice to guide the instructional program.

Ensure that teachers and other instructional personnel are well prepared and focused on instructional duties.

Ensure that all required competencies and skills are taught and that curriculum objectives are translated into subject matter actually taught in the classroom.

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Provide remediation programs for students who fail to master required skills and competencies or who have difficulty learning.

Make informed decisions regarding the appropriateness of curriculum, textbooks, and instructional policies.

Develop flexible and varied instructional strategies and techniques to meet the individual needs of students.

Use well-prepared promotion and retention standards as guides to decisions affecting student progress.

Avoid inappropriate testing procedures that could result in misclassification or inappropriate placement of students.

Develop appropriate methods to monitor instructional practices.

The Application of Negligence Law to Proper Supervision

One of the most common allegations of negligence directed toward educators is that of negligent supervision. It is estimated that nearly one-fourth of negligence cases identify improper supervision as the primary or secondary cause of an injury. Courts recognize that it is impossible for educators to personally supervise every movement of every student every day and that accidents will occur; no amount of supervision can completely prevent such occurrences. Schools are not insurers of student safety but owe a duty to adequately supervise students in their care and can be held liable for foreseeable injuries proximately related to an absence of adequate supervision.

Educators, however, are expected to exercise a reasonable degree and quality of supervision and to be physically in the general vicinity, fulfilling the responsibilities associated with the supervision assignment. In the absence of board of education policy, principals have a duty to promulgate rules for their schools, and with teachers and other employees, they have the duty to enforce reasonable and lawful rules established for the safety of students and others.

Schools must provide competent supervision in sufficient quantity to cover the supervisory needs of the situation. Liability arising from supervisory activities is not limited to the failure to provide competent supervision. Situations occur when competent supervision has been provided but, for various reasons, the supervisor is absent when an accident occurs. Liability in such cases usually depends on the foreseeability of an accident. If the supervisor’s presence at the time of the injury would not have prevented the injury, there is likely to be no liability. However, if the accident was foreseeable and the supervisor’s presence would have prevented the injury, the principal, teacher, or other school employee may be subject to litigation.

Activities and School Areas That Increase Risks

Student participation in school-related hazardous activities requires a great deal of careful supervision by school personnel; similarly, some areas in the educational setting have a greater risk of student injury associated with them than do others. Educator negligence in supervising such activities is generally predicated on a failure to instruct the student properly in the correct use of a dangerous instrument or to warn of the inherent dangers associated with an activity or experiment. The most prevalent forms of hazardous activities involve vocational training, science experiments, cooking classes, physical education, playground activities, and athletic or intramural activities.

Teachers and principals need to maintain a special awareness of the risks associated with high-risk areas in and around the school and provide such supervision as would be reasonable and prudent under the circumstances.

Principals should also be mindful that risk areas continually change. For example, students may change the popular areas of school that they congregate at various times. Special activities may bring groups of students to campus from other schools that require some type of supervision. Construction, renovations, or other physical plant concerns are reasons to take appropriate additional measures to ensure the safety of students and staff.

Specific Supervision and General Supervision

Establishing the standard of supervision is difficult. What may be adequate in one situation may not be so in another. Specific supervision is required when students are unfamiliar with an activity or when an activity is unusually dangerous. The need for specific supervision is frequently related to the age of the student. General supervision is all that is required under normal situations. During playground time, general, rather than specific, supervision is usually adequate.

In District of Columbia v. Royal (1983), a six-year-old student was injured at a construction site next to the elementary school in which remodeling was being done. School officials knew of the potential dangers at the site, and although they