assessment

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reminded students daily to stay away from the area, they took no other precautions to protect students. The court found against the school, citing negligent supervision.

Unattended Classroom or School Area

A difficult determination of proper or improper supervision occurs when teachers leave the classrooms for which they are responsible. A primary responsibility of a teacher is to provide supervision for the classroom. After a teacher’s classes have been accounted for, secondary duties, such as hall, cafeteria, or playground assignments, may be assumed. Court dicta concerning this area of supervision demonstrate the importance of classroom supervision but at the same time are somewhat ambiguous. One element that is important is related to the ministerial or discretionary duties that are assigned to a particular situation.

The Application of Negligence Law to Proper Maintenance

Like other entities, school districts have an obligation and a common law duty to keep school premises, including grounds, facilities, and equipment, reasonably safe and in good repair. Courts have awarded damages to students, parents, school employees, and visitors who have been injured as a result of defective conditions on school-owned property when school employees were aware of, or should have been aware of, hazardous conditions and did not take the necessary steps to repair or correct such conditions.

Proper and Preventive Maintenance

The courts hold school district personnel liable for injury when they “knowingly” leave or provide a dangerous instrument exposed in a place likely to be frequented by children who, because of their age or other special condition, cannot realize or appreciate the danger. The age of the child and the child’s ability to comprehend danger are always debatable issues in court, and there are a number of interpretations of age and ability when proper maintenance is litigated. Schools owe a duty to the public to take all necessary positive steps to ensure that buildings and grounds are free of any potentially hazardous conditions.

A school district has the affirmative duty to exercise reasonable care not to provide equipment that it knows or has a reason to know is dangerous for its intended use. Some jurisdictions have rephrased this standard of care, requiring an affirmative duty to supply effective equipment. Although most defective equipment suits involve playground equipment, schools have been sued, for example, for supplying defective blankets, gymnastic apparatus, football equipment, playground toys, and hockey helmets.

Occasionally, the nature of the subject matter being taught by the teacher requires students to use special apparatus. Such devices may present a hazard to student safety, especially if improper equipment is used or if the equipment is not maintained in proper working order. Teachers and others have been held responsible not only for the activities associated with a program but also for not preventing accidents caused by the unsafe condition of equipment and facilities.

The increased use of and the intricacy of equipment in today’s education programs require more care on the part of educators to avoid possible injury. As a result, courts view such care as a primary responsibility of schools and generally rule that schools have a duty to provide safe equipment and comprehensive instruction to ensure its proper use. Furthermore, as the age of the school site or the size of the student population and number of activities increase, the possibility is greater that defective equipment and unsafe conditions exist. Courts tend to favor the injured student or adult in cases in which school officials know that dangerous equipment or unsafe facilities exist and fail to remedy them.

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The courts define inspection of equipment and facilities as a general daily responsibility. Inspections must include the building and grounds, fixed and movable equipment, floors, lighting fixtures, and seats. It is teachers’ and principals’ responsibility to report any dangerous condition that needs to be corrected and to modify programs to isolate hazards until proper corrections have been made.

In Ardoin v. Evangeline Parish School Board (1979), a Louisiana appellate court found a school district negligent in the case of a student who fell and injured his knee while running bases in a physical education class. The student claimed that the school was negligent because school personnel knew of a concrete slab that protruded about an inch above the surface of the ground on the path between two bases. The slab, the student claimed, constituted such a hazardous condition that it was a breach of the standard of care required of the school to allow it to exist on the playground. The court ruled in favor of the student.

Nuisance

Under common law, people cannot press for an action in tort for a nuisance unless the plaintiffs can show that they were injured due to negligence. One example is litigation concerning school roofs, which have frequently been an attraction for children to climb. In Barnhizer v. Paradise Valley Unified School District No. 69 (1979), the case involved a thirteen-year-old student who died from injuries after falling from the school roof. The court ruled against the district for negligence, for maintaining an attractive nuisance, and for not preventing students from climbing to the roof.

The legal status of one who is injured is also important in deciding claims of nuisance. The general rule is nonliability for injuries suffered by an adult trespasser. Liability has been found, however, when the trespasser is a youth who, because of their age, cannot perceive the danger of an attraction.

An attractive nuisance is seen by the courts as an unprotected, unguarded, unsafe condition that may attract a child to play. Schools can be held liable for allowing a nuisance to exist. For example, a first-grade student arrived in the school yard before school and began swinging on the monkey bars. Located adjacent to the bars was a tetherball pole about ten feet in height. When the student reached the top of the bars, she grabbed the pole and attempted to slide to the ground. Attached to the center of the pole was a screw that protruded approximately one-and-a-half inches and lacerated the inside of the child’s thigh when she slid over it. In Givens v. Orleans Parish School Board (1980), the plaintiff alleged that the location of the tetherball pole in such close proximity to the monkey bars provided an “attractive nuisance” for the student. The court agreed and ruled in favor of the child and her parents.

The Application of Negligence Law to Field Trips

Field trips are school-related activities that take place away from school grounds. The legal obligation of educators to exercise reasonable care and supervision of students so that they will not be at risk on such trips is the same as in any other site-based supervisory situation. Field trips, including athletic events, are considered extensions of the school. Just as in the classroom and in the school, negligence on a field trip leaves the educator open to court action. Schools owe the same duty of care and supervision to take reasonable precautions to avoid foreseeable injuries to students who participate in mandatory field trips and excursions as would be owed to the students during the normal school day.

Control of Students

The assessment of liability on field trips, during which students are taken into unfamiliar situations, often turns on whether the students are on the premises solely for their own benefit or the host organization derives some benefit from the visit. In general, three legal statuses of students are recognized by law:

Invitees, when the host organization has invited the group. Invitees are due a higher standard of care from the host organization than licensees.

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Licensees, when permission has been granted, on request from the educator, to visit or perform. Licensees visit the premises at their own peril, because the permission to visit does not carry with it the same standard of care as in the case of invitees.

Trespassers, when no permission has been granted to students to visit the premises. An example would be if, during a field trip, students decided on their own to visit a site without the permission or knowledge of the supervisor. Trespassers have little, if any, protection when on property without permission, unless it can be proved that the site was an attractive nuisance to the students due to their age and inexperience.

Foreseeability and Warning

School personnel have a duty to protect the health and safety of students while they are in their charge. Consequently, when students are injured, it is common to inquire whether the injury is due to a breach of this duty by a school employee. If a student is injured while on a field trip, educators may be able to prove that they took reasonable care if they can demonstrate that they visited the site prior to the trip to determine, in advance, that dangers might be involved (foreseeability) and that students were warned (proper instruction) beforehand.

In cases pertaining to breach of duty in field trips, lack of supervision is commonly demonstrated. In one case, a mentally challenged student member of a Special Olympics team was killed while walking with a group three blocks to a gymnasium. The student was accompanied by one teacher while another teacher followed in a car. The student ran into the street at a busy intersection and was struck by a car. The parents of the student claimed that the teachers were negligent by exposing the student with a disability to unreasonable and foreseeable risk of injury. The parents further claimed that the school failed to provide an adequate number of supervisory personnel and to select the safest route. The court found in favor of the parents in Foster v. Houston General Insurance Co. (1981).

Waiver of Liability (Permission Slips)

Although requiring permission slips may provide certain public information or psychological advantages, permission slips or other forms of releases should not be considered a waiver of liability. Parents cannot waive liability for damages which they are not aware of. Although in some instances the parent may waive liability, there is some disagreement whether the parent can waive the rights of the child to recover damages for an injury. Therefore, even with a release, students may still sue for injuries they sustain.

School districts cannot be absolved of their obligation toward students by a parental waiver or release. It may be that the waiver of the parent may affect only the liability arising from the act of taking the students on the trip itself. However, the above facts of law do not mean that some form of permission slip should not be used. To a certain degree, the liability may be diminished with a signed document from a legal guardian granting permission to participate in the activity. Such releases have been seen by some courts as evidence of acknowledgment of some level of assumption of risk for the activity.

A high school band member drowned in a hotel pool while on a trip with the band. The student dove into the water and minutes later was found at the bottom of the pool. Two chaperones who were supervising the pool activity gave immediate mouth-to-mouth resuscitation until an ambulance arrived. The parents of the student claimed negligence in failure to provide adequate supervision for their son, who did not know how to swim. The father, however, had given written permission to use the pool and did not inform anyone that his son could not swim. The court in Powell v. Orleans Parish School Board (1978) ruled in favor of the school, citing the age of the student, proper supervision on the part of the field trip sponsors, and negligence on the part of the father.

Errands

Although it is common practice for educators and other school employees to send students on errands for them, there is no legal authority for educators to use students in this manner. When a student is sent on a personal or school-related errand for a school employee, and the student suffers an injury while on the errand, the legal

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question that arises is whether the school acted reasonably in sending the student on the errand. What constitutes reasonable action depends on the circumstances of each case. Also important is the fact that, while on an errand for the school employee, the student may be classified as an agent of the school and the liability for any damage done to, or caused by, the student may fall on the school. Such actions may fall under the doctrine of state-created danger, which is discussed later in the chapter.

Transportation

The most common area of field trip litigation relates to transportation—both that which is provided by teachers or principals and that which is contracted for, such as public or private bus service. When schools undertake to provide transportation service for students to or from any school activity, the school’s duty of care regarding that transportation is at least equal to that owed on the school premises. When transportation is provided by independent contractors, duty and liability rest with them rather than with the school, except when it comes to proper supervision of students, which is still the duty of the educators present.

The issues of duty and proximate cause are not quite so clear when schools play an intermediary role in organizing, arranging, or sanctioning the transportation of students by private vehicle. The issue of parental responsibility when driving on school-sponsored field trips was addressed in Sharp v. Fairbanks North Star Borough (1977), in which the court stated that “the duty of care, and the liability for negligence which proximately causes injury to a student, shifts from the school to a parent who undertakes to provide transportation for school children other than his own.” Schools do not so easily avoid liability when supplementary transportation to school activities is provided in vehicles operated by school personnel or by students themselves and is arranged or sanctioned by school officials. Schools may be bound under the doctrine of respondeat superior with regard to their employees or by their duty to exercise reasonable care in the selection, approval, and supervision of student cars and drivers.

The Application of Negligence Law to Postinjury Treatment, Athletic Liability, and Spectator Safety

The common use of the term first aid refers to the immediate and temporary care given to the victim of an accident or sudden illness in order either to sustain the life of the injured person or to prevent further injury. Educators have a duty to provide the degree of assistance to injured students under their supervision commensurate with their training and experience. Although courts do not expect educators to be physicians, they do expect people who work with children to be able to administer life-saving first aid whenever needed, as long as the emergency care is rendered in a proper and prudent manner.

School officials have the duty to render first aid and the duty not to render anything more than first aid. Although educators are not authorized to provide general medical treatment to students, they have a duty to administer emergency aid. Either lack of action or unwise action may lead to an allegation of negligence against the educator. In some states, Good Samaritan laws shield individuals providing treatment in emergency situations from liability. Because of the special duty of care required in the student–educator relationship, such laws often do not indemnify school personnel from liability for unreasonable action. Courts have recognized that public policy considerations dictate an obligation to ensure that medical treatment given by a school is competently rendered.

Although educators have the responsibility to implement acceptable and careful procedures, they cannot diagnose or treat injuries past the emergency state. When an emergency is indicated, educators are obligated to do the best they can relative to the amount of training and experience they possess. The range of postinjury treatment may be summed up with the generalization that educators are required to take appropriate steps in the case of an injury to a student or visitor but may be held liable if an attempt is made to help too much—or if they fail to do enough.

Millions of students engage in some type of interscholastic sport each year. Although educators may be somewhat comforted by the available defense of assumption of risk if a participant is injured, an athletic

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participant may generally assume the risks inherent in a particular sport but not the risks resulting from educator negligence. In applying the concept of negligence specifically to school athletics, a major consideration is the duty educators owe to the participant to

Provide proper and adequate instruction and supervision

Provide and maintain safe facilities and equipment

Provide proper medical attention

Reasonably select and match participants

When an athletic injury occurs, educators often turn to the defenses of contributory negligence and assumption of risk for protection from liability. Of the two defenses, assumption of risk appears to be the most successful. However, assumption of risk does not have universal acceptance in the courts. In some states, it has been expressly abolished on the basis that reasonableness of conduct should be the basic consideration in all negligence cases. Nevertheless, if a school district or school employee has been negligent in duty and standard of care, neither defense would probably be upheld by a court. Students assume only the known risks inherent in a particular athletic activity.

Increased awareness and medical knowledge about the dangers of concussions require school principals and policy makers to respond accordingly. Since 2009, forty-nine states have passed laws on concussions in sports, often called Return to Play Laws. Most of these laws include requirements to educate coaches, parents, and athletes regarding concussions; removing the athlete who is believed to have a concussion; and requiring permission from a medical professional in order to return to play.

Awareness of the seriousness of head injuries and concussions related to football was raised significantly by a settlement agreement in 2015 between the National Football League and the NFL Players Association to diagnose and compensate former players who may develop brain disorders related to playing the sport. The settlement does not directly impact school-age students playing football or other sports; however, there are lessons to be learned for school districts as they care for their student athletes, and the awareness of the seriousness of the issue brought major changes in rules and school athletic governing associations.

Proper instruction is especially important in high-contact sports, as improper technique can be a significant cause of increased risk. Note that intentionally teaching improper technique would bring additional liabilities, possibly including criminal charges.

Express assumption of risk, in which students and their guardians sign waivers of liability for claims against the school district and school personnel for their negligence, is generally useless. Although these waiver forms are contracts, minors can disavow most contracts at will. Waivers signed by parents, guardians, and adult students also are generally unenforceable because they are usually contrary to public policy.

Courts have also recognized that education institutions have a duty toward spectators. Even in states that provide government immunity, dangerous facilities fall outside of most immunity provisions. Spectators must be able to have confidence that physical structures, walkways, and other facilities are safe and well maintained. In addition, crowd control procedures must be apparent, and appropriate first aid must be available.

Courts have also recognized that schools have similar duties toward spectators, in terms of supervising events, providing and maintaining safe facilities and equipment, and providing first-aid assistance when needed.

Two areas of concern that can be somewhat perplexing to an educator can be seen in the following questions:

1. When an athletic injury occurs, are the defenses of contributory negligence and assumption of risk adequate for protection from liability?

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2. What responsibilities, if any, does the school have in providing a safe place for spectators?

Postinjury Treatment: Failure to Act Versus Proper Action

As long as educators administer emergency care in a proper and prudent manner, the courts appear to favor the educator. In such circumstances, both duty and the reasonable person standard are important. While all educators owe a duty to protect all students, what may be a reasonable action by a licensed school nurse may be viewed differently from reasonable actions by a staff member not generally expected to know how to treat a student injury.

Administering Medication and Medical Marijuana

Educators and school personnel regularly find themselves being asked to give medication to students during school hours. School personnel are not medical professionals and need to restrict their administration of medication and any medical procedures to those that they are trained and authorized to conduct, in accordance with school district policies and procedures. To ensure the safety of school children and minimize the administration of medications to children during the school day, each school district should develop guidelines.

An emerging issue for educators is policy related to medical marijuana in schools (Weiler & Westbrook, 2020). A majority of states in 2021 allow for not only recreational marijuana but prescription medical marijuana, including prescriptions for minors. The dilemma for schools rests on the policies and protocols for students who may have a prescribed marijuana dose during the school day. School nurses may be in a position to choose between following one set of state laws that go against federal laws that are still in existence that prohibit all forms of marijuana.

Schools must develop their own policies related to their state statutes, and most states have guidelines that either have a parent come to administer the prescription or that the medical marijuana must come in a nonsmoking form. Marijuana use, both medical and recreational, in the educational space, will continue to be an evolving issue for many years, especially as more states relax their prohibitions on such use.

General Guidelines for Administering Medication

These are general guidelines—more specific guidelines may be available from the state department of health in particular states.

Require that written requests from the parent or guardian and from the physician or dentist accompany any medication to be administered, including over-the-counter drugs such as aspirin, ibuprofen, and cough medicine. Make these forms available for convenient access for parents on school and district websites.

Require the physician request form to be dated and to identify the time of day medication is to be given and the anticipated number of days.

Require that any changes in the type of drug, dosage, or time of administration also be accompanied by new physician and parent permission signatures.

Require that the medication be provided to the school in the original prescription container.

Require that registered nurses, physicians, or dentists be responsible for overall administration of medication in the schools. Delegate administration to a licensed practical nurse or unlicensed staff member only after an initial assessment by the school nurse.

Limit medications to be administered by school personnel, if possible, to oral or topical medications, except in emergency situations. Exceptions might include the administration of eye drops, ear drops, and rectal suppositories.

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Prohibit school personnel from maintaining supplies of over-the-counter medications on school premises including athletic areas, unless a prescription is provided along with written parent permission to administer.

Keep an individual and comprehensive record of any medication administered to students and keep all medication in a locked container.

Require that all medications be inventoried at least once a semester by a licensed health care professional.

Have parents pick up out-of-date medications or destroy them. Seal needles and syringes in a puncture- proof container and dispose of properly.

Provide all local physicians and dentists with the school board-approved policy regarding administration of medication and conduct of medical procedures at school. Make the school district’s request for administration of medication forms readily available to local health care professionals.

Athletics and Spectator Safety

Provide adequate instruction and warning to students and parents.

Provide adequate supervision of athletic participants and all other sports-related student organizations (e.g., cheerleaders).

Ensure that only proper equipment is used and that proper maintenance of equipment takes place.

Practice only reasonable matching of participants.

Hire and retain only qualified athletic personnel and trained coaches. Even if allowed by state athletic associations, state law, or regulations, be especially cautious allowing “volunteer coaches” in any capacity.

Ensure that there is proper supervision, including formal evaluation, of adult personnel by administration.

Restrict activities to proper facilities and playing fields.

Ensure that proper health care is available to participants and that participant fitness and health are monitored. Require medical examinations prior to allowing students to participate in athletic activities.

Ensure that all school athletics and activities are conducted in compliance with statutory guidelines, regulations, safety rules, and eligibility requirements.

Provide proper and safe transportation to athletic and other extracurricular school activities.

SECTION D. STATE-CREATED DANGER AND DELIBERATE INDIFFERENCE

School District Liability at the Federal Civil Level Based on the Fourteenth Amendment’s Due Process Clause and Section 1983 of Chapter 42 of the U.S. Code

Procedural due process generally specifies how government actions are to be applied and requires that specific safeguards be satisfied before a government action affecting life, liberty, or property can take place. In contrast, substantive due process, generally defined, is a protection requiring such government actions to be fair and reasonable in content as well as application. When a government action is both unfair or unreasonable and damaging to life, liberty, or property, it is said to violate substantive due process.

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In school-based cases, plaintiffs’ claims typically center on school districts’ failure to take steps that would have prevented dangerous situations that, as a result, had adverse impacts on people’s Fourteenth Amendment rights. Plaintiffs typically claim that they have an affirmative right to government protection from danger under the Due Process Clause. Courts have recognized such an affirmative right when a “special relationship” exists between a state and the individual or when a “state-created danger” exists (Deshaney v. Winnebago County Department of Social Services, 1989).

As an example, the Eighth Circuit Court recognized two distinct situations in which they believe the state owes an affirmative obligation to protect its citizens. They noted that the Due Process Clause imposes a duty on “state actors” to protect and care for citizens (1) “in custodial and other settings in which the state has limited the individuals’ ability to care for themselves” and (2) “when the state affirmatively places a particular individual in a position of danger the individual otherwise would not have faced.” As early as 1988, they stated in Wells v. Walker that “state actors have an affirmative duty to protect citizens in situations of danger creation.” In 1996, in Doe v. Wright, they reaffirmed their 1988 statement, noting that “[t]his court has held that the Due Process Clause imposes a duty on state actors to protect citizens . . . when the state actor creates the danger.”

Plaintiffs seeking to file their complaints in a federal, rather than a state, court often allege, in addition to their claim of a violation under the Fourteenth Amendment, that the school district violated their rights under Section 1983 of Chapter 42 of the U.S. Code, which states,

Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or cause to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any right, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

This clause, commonly referred to as Section 1983, has had a huge impact on the federal court system. Included in that impact are cases that have a direct bearing on public education. Vodak (1999) noted, for example, “mistreatment of school-children, deliberate indifference to medical needs, and the seizure of property without advance notice or sufficient opportunity to be heard.” Courts have held school employees to be proper “persons” subject to suit under Section 1983 (B.M.H. v. School Board of the City of Chesapeake, 1993). The Supreme Court stated that “acting under the color of state law” traditionally requires that a defendant “exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law” (West v. Atkins, 1998).

Although litigation based on federal violations under Section 1983 is not new, in 1989, the U.S. Supreme Court issued a decision in Deshaney v. Winnebago County Department of Social Services, and in one sentence of the language (dicta) of its overall opinion, generated the theory of state-created danger:

While the state may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them.

Although the Court in the Deshaney case found no liability, other courts have taken this language and “turned it on its head to create a new theory of liability” (Levin, 2000). Since the Deshaney case, many federal courts have grappled with this new theory of liability, its application, and the consequences of using the Due Process Clause of the Constitution as a conduit for state liability.

In 1995, the Third Circuit Court, in Mark v. Borough of Hatboro, adopted the theory of state-created danger and developed a four-part test to determine whether a claim under this theory has validity. Plaintiffs alleging state- created danger must demonstrate that the following four elements exist within a cause of action:

1. The harm to the plaintiff was ultimately foreseeable and fairly direct.

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2. The state acted in willful disregard for the safety of the plaintiff. 3. There existed some relationship between the state and the plaintiff. 4. The state used its authority to create an opportunity that otherwise would not have existed for the third

party’s crime to occur.

Other courts have summarily added to this list of elements by including dicta that incorporate such fundamentals as a showing by the defendants of deliberate indifference to the rights of the plaintiff(s) by the conscious or reckless disregard of the consequences of their acts or omissions. For example, in Huffman v. County of Los Angeles (1998), the Ninth Circuit Court noted, “[T]he danger-creation plaintiff must demonstrate, at the very least, that the state acted affirmatively and with deliberate indifference in creating a foreseeable danger to the plaintiff, leading to the deprivation of the plaintiff’s constitutional rights [under the Fourteenth Amendment].”

The key to state-created danger cases lies in the defendants’ culpable knowledge and conduct in affirmatively placing the plaintiffs in a position of danger, effectively stripping the plaintiffs of their ability to defend themselves or cutting off potential sources of aid. In other words, to be held liable, the environment created by the defendants must be dangerous; they must know that it is dangerous; and they must have used their authority to create an opportunity that would not otherwise have existed in which the plaintiff suffered harm. Beyond this prevailing concern, the elements, as more simply described in Johnson v. Dallas Ind. School District (1994) and again in Armijo v. Wagon Mound Public Schools (1998), are as follows:

Plaintiff was a member of a limited and specifically definable group.

The defendant’s conduct put the plaintiff at substantial risk of serious, immediate, and proximate harm.

The risk was obvious or known.

The defendant acted recklessly in conscious disregard of that risk.

Such conduct when viewed in total is “conscience shocking.” In Hayes v. Faulkner County, Arkansas (2004), for example, the Eighth Circuit Court noted, in a prison-related case, that “[d]eliberate indifference to prisoner welfare [or a student’s welfare] may sufficiently shock the conscience to amount to a substantive due process violation.”

Although the theory of state-created danger is unresolved and still being contested in federal courts across the country, it is wise for educators to be aware of this particular premise of negligence and add this knowledge to their practice of risk management. Some examples provide a better idea of how all of the above might fit into a school environment.

In Armijo v. Wagon Mound Public Schools, a special education student with known suicidal tendencies was suspended from school and driven home, without parental permission or notification, to an empty house with accessible guns. He fatally shot himself. In this case, the Tenth Circuit Court found that the school’s conduct in suspending the student, taking him home, and leaving him alone with their knowledge of his fragile mental state had increased the risk of harm to the student. In taking such actions, the school officials acted in conscious disregard for the student’s safety, and their conduct could be viewed as conscience shocking.

In a particularly egregious case, school authorities devised a plan with a fourteen-year-old girl to be used as “bait” to catch a student who was a known sexual harasser and was known to have victimized the girl in the past (Hill v. Madison County School Board, No. 14-12481 (11th Cir. N.D. Al. 2015)). Under school policy, a student could not be disciplined for sexual harassment unless “caught in the act.” The plan was to have the girl lure the boy into a restroom and school officials would follow and intervene. Unfortunately, although the girl did what was requested of her, the school authorities did not, and she was raped in a school bathroom. The student was disciplined multiple times for different sexual harassment incidents, and there were rumors that the student had been soliciting girls to meet him to have sex during school hours. After the girl told a teacher aide that she was

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approached to have sex, the aide told her that she should agree to meet him in order to catch him in the act. Initially the girl said she didn’t want to do that, but a few minutes later said she would.

The aide and the girl went to an administrator’s office and told her of the plan. Although the administrator seemed disinterested, she did not stop them or inform them not to proceed. When the girl went into the bathroom with the student, the teacher aide could not find which bathroom they were in, and it took several minutes and other staff members to find the students.

The case took a lengthy legal course through the courts. The plaintiff student lost her lawsuit against the school board and administrators at the district court level, but that decision was reversed on appeal. The appellate court held that a female student sexually assaulted by another student could proceed to trial on her Title IX claim against the school board. The court reasoned that Title IX applied because there was evidence presented that a jury could reasonably conclude that the school knew that the harassment by the student was sufficiently severe, pervasive, and objectively offensive to deprive the victim of educational opportunities.

Although this case was not decided on the doctrine of state-created danger, it is illustrative for school principals in educational terms. Had actions taken, and not taken, by school officials never occurred, the rape of the student, at least in this instance, would not have happened.

ADDITIONAL CASES OF INTEREST TO EDUCATORS

Hutchison v. Toews, 4 Or.App. 19, 476 P.2d 811 (1970). An injured student with knowledge of risk involved is contributorily negligent. The case involved two students who removed chemicals stored in a locked cabinet that they knew would cause an explosion.

Richard v. St. Landry Parish School Board, 344 So.2d 1116 (La. App. 1977). A teacher went home and left students unsupervised after school in her classroom. One student found a knife in an unlocked drawer and cut himself. A court determined that leaving students in the classroom was not the proximate cause of the injury to the student.

Hunter v. Board of Education, Montgomery County, 439 A.2d 582, 292 Md. 481, 292 Maryland 481 (1982). An educational malpractice case where parents claimed that their child was negligently tested and misdiagnosed which resulted in misplacement in school that caused embarrassment and declining school performance.

Simonetti v. School District of Philadelphia, 308 Pa.Super. 555, 454 A.2d 1038 (1982). A momentary absence from classroom by a teacher does not constitute negligence. Upon returning from recess, the teacher was standing at the classroom door and inside the room a student was injured by a pencil that propelled from the hand of a student who tripped and fell.

Fallon v. Indiana Trail School, 148 Ill.App.3d 931, 102 Ill.Dec. 479, 500 (N.E.2d 101 1986). A trampoline is not abnormally dangerous for the purpose of imposing strict liability. The court affirmed a lower court ruling against the plaintiff, noting that a trampoline itself was not dangerous but injuries occur due to the manner of its use.

Wagonblast v. Odessa School District, 110 Wash.2d 845, 758, P.2d 968 (1988). A court affirmed that releases or waivers that parents are required to sign as a condition of a student engaging in school activities and that absolve school districts from liability for negligence are invalid. In particular, the waivers specified that parents were releasing the school district from liability for all potential future negligence, which the court found to be in violation of public policy.

Stevens v. Chesteen, Ala. Sup. Ct. 561 S0.2d 1100 (1990). A brief absence from class by a teacher does not constitute a breach of duty of reasonable supervision. A student who had previous knee surgery was excused from participating in physical education class but was standing too close to an area where students were conducting an activity. He did not see students coming in his direction and was hit, causing a re-injury to his knee.

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The plaintiff claimed he was forced to stand in a hazardous area and the teacher did not supervise him. The court noted that it was not possible to personally supervise every student all the time.

Brown v. Tesack, 566 So.2d 955 (La. Sup. Ct. 1990). A breach of duty of reasonable care imposes liability on a school board. The case centered around how highly flammable duplicating fluid was discarded on school property that was eventually taken by youths. The youths later ignited a fireball resulting in severe burns.

Rich v. Kentucky Country Day, Inc., 793 S.W.2d 832 (Ky. Ct. App. 1990). Parents sued the school district claiming that it was malfeasant in its contractual duty to provide educational expertise by failing to recognize a learning disability. A court concluded that they did not present sufficient facts to support their claim.

Eisel v. Board of Education of Montgomery County, 597 A.2d 447 (Md. 1991). In a reversal of a lower court, an appellate court held that school counselors have a duty to use reasonable means to prevent a suicide when they have notice of suicidal intent by a student. Friends of the victim told school counselors of the victim’s intent to commit suicide but they took no action and did not inform her parent about the information.

Brownell v. Los Angeles Unified School District, 4 Cal.App. 4th 787, 5 Cal.Rptr. 2d 756 (1992). An appellate court reversed a lower court decision against the school district. The school district did not have reason to foresee the gang-related shooting of a student that occurred adjacent to the school after school was dismissed.

Hammond v. Board of Education of Carroll County, 100 Md.App. 60, 639 A.2d 223 (1994). An appellate court upheld a decision that a female student assumed the normal risks of injury in choosing to play tackle football. The girl was the first female football player for the school and was injured in the first full scrimmage. She had her spleen removed and was hospitalized for days. The record showed that there were multiple times where the potential for injury was discussed, the parent had signed a consent form, and the girl participated in practices where coaches instructed all players about techniques that should be used to avoid injury.

Spears v. Jefferson Parish School Board, 646 S0.2d 1104 (La.App.1994). A school district was found liable for damages for an intentional act by a teacher resulting in emotional harm to a student. A teacher/coach was supervising a P.E. class that was watching a movie indoors due to inclement weather. When three kindergarten students were disruptive, they were moved near the coach, who told them if they didn’t stop annoying him, he would “kill them.” He then took two of the boys into an adjacent office, and he had the boys play a trick on the boy left behind. They pretended to be dead, and when the plaintiff was brought to the office, he was horrified at what he saw. The plaintiff suffered psychological trauma for weeks and was diagnosed with posttraumatic stress disorder (PTSD).

Johnson v. School District of Millard, Neb. Sup. Ct. 573 N.W. 2d 116 (1998). A court held that a reasonably prudent teacher could have foreseen possible injury to a student. A music teacher had first-grade students play “London Bridge” where they clasped hands and “captured” a student during the song and game. When the formal instruction ended, she allowed students to play this on their own, and a student was grabbed and flung against a bookcase, causing an injury that required fifty stitches near his eyebrow and later resulted in blurred vision and headaches.

Stowers v. Clinton Central School Corporation, 855 N.E.2d 739 (Ind. Ct. App. 2006). A jury trial and subsequent appeals by parents of a deceased football player were not accepted for review by the state Supreme Court. The student died after football practice in extreme heat. Testimony was provided that measures were taken in practice related to the heat. The trial court determined that the school was not negligent while the parents asserted that their son did not contribute to his death through his own negligence.

Kerns v. Independent School District No. 31, 984 F. Supp. 2d 1144 (N.D. Okla. 2013). On the day of prom, a student was on school grounds during decorating and consumed alcohol. At least one teacher became aware that he was intoxicated and notified the superintendent, who confirmed he was intoxicated. He immediately suspended the student for the remainder of the school year. He directed two other students to drive him home but did not contact the parents. After leaving the school, the students allowed the intoxicated student to drive, and he later

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was killed in a traffic accident. The court held that under the state-created danger doctrine, the affirmative actions of the superintendent placed the student in greater danger than he was before the actions were taken.

Rogers v. Christina School District No. 45, 2012 (Del. July 16, 2013). The Delaware Supreme Court found the school district not liable under the state’s Wrongful Death Act for teen suicide that occurred off-campus, but parents had a valid claim of negligence per se because the district allegedly violated mandatory requirements to notify parents of a crisis situation.

Weinberger v. Solomon Schechter School of Westchester, 961 N.Y.S 2d 178 (N.Y. Sup. Ct. 2013). A freshmen softball player assumed the risk of injury during a pitching drill that resulted in her getting hit in the face with a softball.

Jahn v. Farnsworth, 617 Fed. App’x 453 (6th Cir. 2015). In a tragic case, a student committed suicide after being suspended for the theft of a school computer. The student was told he would be suspended for the remainder of the school year and he subsequently left school and drove his car into a concrete pillar. The court held that his due process rights were not violated and parents were aware of the Code of Conduct procedures. In addition, the state-created danger doctrine did not apply because the student committed suicide off school grounds after being released to his parents.

Sperry v. Fremont County Sch. Dist. No. 6, 84 F. Supp. 3d 1277 (D. Wyo. 2015). In a tragic case, a student was hit and killed by a vehicle after a bus driver motioned to the girl to cross the two-lane highway. The court granted immunity in some claims, but left it for a jury to determine negligence claims as to whether the driver breached his duty to the student.

Duffy v. Long Beach City Sch. Dist., 22 N.Y.S. 3d 88 (N.Y. App. Div. 2015). A student was injured before football practice when unsupervised, several football players used a blocking sled to catapult themselves into the air. The plaintiff broke both wrists after he went ten feet into the air before hitting the ground. The unsupervised actions allegedly lasted at least twenty minutes. The appellate court reversed a lower court decision that favored the school, noting that the school had a duty to supervise students at the time of the accident and that the presumption of risk doctrine did not apply.

Safon v. Bellmore-Merrick Central High School District, 22 N.Y.S. 3d 233 (N.Y. App. Div. 2015). A student was injured during lacrosse practice after his foot hit a goal without a net in place. An appellate court ruled that even though the net was not in place, the student assumed risk inherent in the sport.

L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235 (3rd Cir. 2016). An appeals court upheld a decision against a teacher and school district in a case where the teacher released a five-year-old student from the classroom with an unidentified adult who later sexually assaulted the girl. The case met the elements to support the claim under the “state-created danger” exception to the general rule that there is no duty on states to protect citizens from private harm.

Slane v. City of Hilliard, 59 N.E.3d 545 (Ohio Ct. App. 2016). A student was hit by a vehicle while crossing a busy street where the school zone flashing light was not yet activated due to the fact she was arriving to school for a “zero” hour class. Additionally, traffic lights at the intersection had not worked for several months prior to the accident. An appellate court affirmed a ruling that the city and school district were entitled to qualified immunity. The injuries occurred on a public roadway and not within the grounds of the school district.

Boatright v. Copeland, 783 S.E.2d 695 (Ga. Ct. App. 2016). A student injured his hand while assisting with shooting a cannon owned by the school district used during football games. He sued under the theory that the school board and administrators were negligent in allowing a cannon to be used in a school safety zone. The district argued that firing the cannon should be considered “classroom work” which was an exception to the statute regarding the prohibition of weapons on school property. The court held that the defendants were not entitled to qualified immunity because complying with a criminal law is a ministerial duty and not discretionary.

Swank v. Valley Christian School, 374 P.3d 245 (Wash. Ct. App. 2016). A high school football player sustained a concussion during a game. He was cleared by his doctor to play the next week. During the game, he showed signs

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of injury but remained in the game. He was later hit hard and left the game, and died two days later. An appeals court determined that violation of the relevant state law by someone the law imposes a duty upon may be evidence of negligence, and even though the doctor cleared him to play, there was evidence during the game that the player suffered continued signs of injury but was still allowed to continue.

Barnett v. Atlanta Independent School System, 792 S.E. 2d 474 (Ga. Ct. App. 2016). An appeals court held that supervising students was a discretionary act entitled to official immunity, even when actions violated specific policies designed to supervise students. The case concerned a teacher who left a class unsupervised, and while students engaged in horseplay, a student was fatally injured when multiple students fell on top of him.

Doe v. Berkeley County School District, 189 F.Supp.3d 573 (D.S.C. 2016). A principal had received word that a student was sexually assaulting female classmates but took no action. The next school year, the plaintiff was in the same classroom as the alleged perpetrator student and was later sexually assaulted. The plaintiff claimed that the principal violated the doctrine of a state-created danger, but the court noted how difficult the standard is to meet. The action by the principal neither created nor increased the pre-existing risk of being harmed by the student. The plaintiff argued that by not taking action maintaining the status quo, but the court noted that maintaining the status quo is not a state-created danger. The court did note that it did not endorse the conduct of the principal, but that the plaintiff failed to state a claim of a due process violation.

Morgan v. East Baton Rouge Parish School Board, 215 S.3d 442 (La. Ct. App. 2017). A parent sued after her kindergarten student was left locked on a school bus. The driver failed to notice the sleeping child, who was later discovered in the bus. The court awarded damages for the child’s medical expenses and general damages, but denied relief for economic loss of the parent.

Ella T. v. California, Case No. BC685730 (Superior Court CA 2017). It is a case that was the California counterpart to Gary B. v. Snyder that resulted in a historic settlement agreement to introduce legislation to provide sufficient literacy support in seventy-five schools that received the most students who scored the lowest on state proficiency tests. Ten students argued that although California had created a plan for literacy, the state had never implemented it, and students in disadvantaged communities attended schools that could not provide an opportunity to achieve basic literacy.

Munn v. Hotchkiss School, 165 A.3d 1167, 326 Conn. 540 (2017). The Supreme Court of Connecticut upheld a jury award of $41 million in a case where the plaintiff’s parents alleged the school failed to properly warn of the foreseeable risks presented during a school trip to China. The student developed life-long disabling affects after contracting tick-borne encephalitis.

Guerriero v. Sewanhaka Central Sch. Dist., 150 AD 3d 831 (N.Y. App. Div. 2, 2017). A court held that an injury to a student who was punched in the face by another student was foreseeable. One month prior to the incident, the student reported to his teacher that he was slapped and his head was pushed repeatedly to his desk. On the day in question, the teacher glanced up but took no action as students were entering the classroom. Over a period of a few minutes, the plaintiff was blocked from the classroom door, pushed into a desk, followed to his own desk, and despite his pleas for the other student to stop, he was punched in the face. The court held that the incident did not occur so quickly and even the most intense supervision could have prevented it.

Dextraze v. Bernard, No. 2020-48-Appeal (R.I. June 28, 2021). The Rhode Island Supreme Court upheld the trial court’s finding of school district negligence and proximate cause of plaintiff’s injuries involving a student-on- student assault in the high school’s hallway. The school district’s motion to dismiss was denied because the school had a common-law duty to adequately supervise students. In this case, a student punched another student in the hallway, breaking his jaw. The student was being followed and was sworn at while passing several classrooms without seeing a teacher. After he was punched, he fell to the ground and was hit again. When he got up, a teacher came to the hallway, yet after he told the teacher he was hit in the head, he was told to get to class. The plaintiffs also alleged the school district did not follow their progressive discipline policy regarding the offending student, and reasonably should have known the student posed a threat of physical harm.

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Meyers v. Ferndale Sch. Dist., No. 98280-5 (Wash. Sup. Ct. 2021). The Washington Supreme Court agreed with an appellate court decision that material issues of fact existed concerning proximate cause in a case where a student was killed by a vehicle while walking off-campus with his physical education class.

Moore v. Tyson, No. 1190547 (Ala. 2021). The Alabama Supreme Court affirmed a lower court judgment in favor of defendants based on immunity. A student was seriously injured in a fall in an unsupervised classroom after the teacher left to use the restroom. The court held that no rule existed that prohibited the teacher from leaving the classroom unattended in order to use the restroom where she acted beyond her authority.

Descriptions of Images and Figures Back to Figure

The illustration is titled “The School’s Duty and Standard of Care As Related to Student Age*” and subtitled, “An Inverse Relationship.” The illustration resembles a table shown as follows:

Supervision maximum less than nursery

more than primary but less than nursery

more than primary but less than nursery

maximum

more than primary but less than nursery

less than primary

less than 15- year- olds

less than 16- year- olds

Age in Years

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Grade in School

  K 1 2 3 4 5 6 7 8 9 10 11 12

School Levels

Nursery/

Preschool

Primary Intermediate Middle Level

High School

Text below the illustration reads

“*Students with disabilities require a higher degree of duty and standard of care at all ages and school levels.

1. The courts routinely differentiate the required degree of duty and standard of care at only two age levels— ages 1 to 14 and ages 15 to 18.

2. The authors believe that the required degrees of duty and standard of care decrease during the elementary school years, that the onset of puberty and adolescence may require a return to maximum levels of duty and standard of care during the middle school years, and that the required level decreases progressively for senior high school students.

Note: The courts, to date, have held that children under the age of 7 may not be held responsible for their own negligence.”

In the illustration, the cells above age groups 1 to 8 are of same color and correspond to bullet point 2.

The cells above age groups 10 to 14 are of one color and the cells above age groups 15 to 18 are of another color and correspond to bullet point 1.

The cells above age group correspond to the color codes of both bullet point 1 and bullet point 2.

Back to Figure

The risk of negligence flowchart and asks the following questions:

1. Did you have a duty to the injured party?

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a. No, you are probably okay. b. Yes, go to step 2.

2. Did you exercise this duty in a reasonably prudent manner? a. Yes, you are probably okay. b. No, go to step 3.

3. Did your action or inaction result in the injury? a. No, you are probably okay. b. Yes, go to step 4.

4. Did the injured party suffer actual damage or loss? a. No, you are probably okay. b. Yes, you are potentially at risk of being found liable of negligence.