Ch 6, Schl Personnel District Liab Hardison/Wheaton HU 11-12 1 Chapter Six School Personnel &...

Ch 6, Schl Personnel District Liab Hardison/Wheaton HU 11-12

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Chapter SixSchool Personnel & District Liability

Presented by:Cathy Hardison, JD, PhD

Associate Dean, Heritage University Attorney-at-Law

ANDCharles Wheaton, PhD

Online Curriculum Specialist/Faculty TrainerHeritage University

Ch 6, Schl Pers Liab Hardison/Wheaton HU 11-12

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Is Your School Safe?

Basic presumption = kids are safe Place where learning takes place Staff acting in place of parents (“in loco

parentis”)– Must instruct, supervise, and provide for safety of

students/staff during the school day Parents must be assured school staff are

reasonable professional adults


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Scenario– You receive a complaint from a middle school student that

his teacher uses a discipline technique that “hurts” him. While you discuss the problem with the student you discover the teacher takes the hand of the student and asks him to form a fist.

– After the student does as he is told, the teacher presses down on the first knuckle of the middle finger and pushes the finger downward into the palm of the student’s hand.

– When you confront the teacher he laughs and says it is a discipline technique when he catches students “flipping off” teachers, campus security, other students, etc.

– What is your response?


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Duty/ Affirmative Legal Obligation

School staff will take whatever necessary measures to – Ensure safety– Keep the school environment conducive to learning– Affirmative duty to alleviate crime and violence (Hosemann

v. Oakland Unified SD) page 170• Does this case affect us?

– Doe v. Taylor. Texas case. Sexual abuse of female student. Principal held to standard of “should have known,” superintendent exonerated (held blameless)


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It is late May. You hear a student rumor that your friend, the school’s chemistry teacher, is teaching students how to make bombs, using common household/landscaping items.

When you ask some of her students, they tell you she is, indeed, showing them how to make a bomb similar to the one set off in Oklahoma.

When you ask the teacher about the rumor, she affirms it and says she is using a teaching technique to keep student interest and they promise to never use the information.

What is your response?


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How Do You Limit Liability for School Violence? Is your school possibly another Columbine? Students are afraid in American schools

– Washington from 1992-93 to 2002-03 reported 12 deaths related to school violence

• (Only Calif 74, Colorado 15, Florida 19, Georgia 17, Mass 14, New York 16, Penn 14, Texas 23 reported more deaths)*

• During each hour of the day, 2,000 students, 3-4 teachers are attacked AT SCHOOL*

• 5% of students in US, 12-18, fear being attacked or harmed AT SCHOOL*

Can anyone find more recent statistics? Can these statistics be challenged? How?

Source: National School Safety Center quoted in School Law by Essex

School Violence Statistics

School year 07-08 = 43 Violent deaths assoc with school, out of 55.6 million students K-12

2007 = 1.5 million students 12-18 victims of non-fatal crimes in schools (theft, fighting, etc). 1.1 million out of school

2007-08 School year 4% students reporting being victimized 2007 = 10% male, 5% female high school students reporting

being threatened w/ a weapon on school property 2007 = 32% cases of bullying 12-18 (being made fun of,

excluded, being threatened with injury)

www.nssc1.org/important-school-statistics.html


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What are some situations in your school that are not safe?

How can you personally assure that your school is safe?

What if you are not a school staff member and know about unsafe conditions at a local school?


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What is a Tort?

Actionable or civil wrong (can go to court to seek relief)

Committed against another Separate from contract law, criminal law Can be intentional, have strict liability, or be

the result of negligence--meaning? If due to actions of school personnel can be

liable in court for actions


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Prior Knowledge-How Established?

What criteria does your school use to identify potentially violent students?

Case in Kentucky (45 defendants). Three fatalities. Claim is that Ds knew or should have known 14 year old was capable of violence. Indicators were:– Violent papers-shooting students, detonating

bombs at school. No one told officials But what about student privacy? Remember

“Tinker?” OK to violate if …


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Prior Knowledge-How Established?

Tinker found that if there were facts that might reasonably lead school authorities to forecast a substantial disruption or material interference with the educational process, then rights are not violated

Can student/writer be disciplined? GET THE GUN!! (Randy Town)


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Admin Best Practice School Violence (Essex), BUT HOW-Your Ideas??

Pay serious attention to warning signs from students or staff Attend to any threat made by a student or staff member Create an atmosphere of trust to provide for anonymously

report potential violence Implement a zero tolerance policy for violent acts Do not tolerate ridicule, hurtful teasing, taunts between staff to

staff, staff to students, student to student,or student to staff Design and implement programs that provide for success of all

students


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Administrative Best PracticeSchool Violence from Essex

Make sure students who do not fit in are provided opportunities for counseling/to gain social skills

Have a plan for quick response when an act of violence occurs and make sure all parties know their roles

Provide staff development for staff on violence and resulting liability

Educate staff, students, parents, community members about school safety and methods to secure the school(s)


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Gangs and Schools

Gang behavior might be foreseen, therefore school officials may be held to be negligent if they do not take steps to prevent injury by gang members.

– Must monitor gang behavior-how?– Act quickly to info that gang activity is

escalating--what signs might indicate escalation?)


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Liability of School Staff

Two categories– Intentional torts (Examples?)

• Assault-creating fear of harm in mind of V• Battery-unwanted physical contact (The bat)• Libel-defamation in print • Slander-verbal defamation


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– Intentional torts (Examples?)• False arrest-unlawful restraint of another

person’s personal liberty or freedom of movement (locomotion)

– EXAMPLE?

• Malicious prosecution-damage to reputation for civil or criminal proceedings prosecuted w/o probable cause or with malice

– EXAMPLE?


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Invasion of privacy-wrongful intrusion into a person’s private activities by others or by government. Tort law protects private affairs of no concern to the public-causes mental suffering or humiliation to the average person (student/staff)– EXAMPLE?


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Individual Liability of School Staff Usually not individually liable unless

– Plaintiff can clearly demonstrate • That employee’s action violated an established law• Ee showed a reckless disregard for the plaintiff’s rights

USSC clarified conditions for damage awards in Carey (1978)– Violated due process, give no hearing– One suspended for 20 days for smoking marijuana on

school property during school hours– Other for 20 days for wearing a earring in school when

school was trying to prevent gang activity


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Vicarious Liability

Impute (to bring legal charges against somebody because a person that he is responsible for has committed an offense) liability upon one person for the actions of another

Respondeat superior means supervisor is liable if ee acts, within the scope of his employment, and injures another

Usually liability is imputed to the School Board, but supervisor is first in line for blame


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Meaning of Foreseeability?

Ability of predict/anticipate that a certain activity can potentially be harmful to another (usually a student)

Need to act in a prudent (good judgment -common sense) manner to prevent the activity from happening

If plaintiff can show foreseeability and subsequent inaction/failure to warn, then can create liability

Examples?


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Vicarious Liability

Impute (to bring legal charges against somebody because a person that he is responsible for has committed an offense) liability upon one person for the actions of another

Respondeat superior means supervisor is liable if ee acts, within the scope of his employment, and injures another

Usually liability is imputed to the School Board, but supervisor is first in line for blame


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What is a Nuisance?

Condition restricting use of property or creates a potentially dangerous situation for the user

School officials have a duty – To maintain a safe premises for invitees, licensees

and even trespassers under certain conditions– To warn of hazardous conditions– To correct or remove hazardous conditions


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What is an Attractive Nuisance?

Important concept, especially for elementary– Dangerous instrument/condition in itself– Heightened Standard of Care-Responsible person

• Knew, should have known children would be attracted• Knew hazardous condition would attract children (expect

children to play or satisfy youthful curiosity)• Children TOO YOUNG to be aware of risk • Utility formula used. Cost of eliminating the risk less than risk

to children • Owner (school district) failure to eliminate the risk, did not

exercise care)

– Examples? (fenced swimming pool--OTHERS??)


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What is Defamation?

FALSE statements made about another– Tend to or actually harm a person’s good name or

reputation OR– Subject that person to hatred, contempt or ridicule– TRUTH defense only when absence of malice

Has to be communicated to a third party Qualified privilege (interest in information and

act in good faith w/o intent to harm)– No evidence statements made with personal spite,

ill-will, or culpable recklessness or negligence


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What is Defamation?

Places where school personnel must watch out for inadvertent comments– Staff lounge, grocery store, restaurants

Do not share sensitive information to those other than those in “need to know”– Background, home conditions, family history that could

damage reputation– If share outside need to know loop will be hard to prove a

defense– Student who can show now being held in lower esteem,

ridiculed or shunned by others, CAN WIN!


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What is Defamation?

SLANDER: oral defamation LIBEL: written defamation Four categories considered defamation on

their own merits:– Loathsome disease (leprosy, STD, AIDS)– Unchastity in a woman in Wash (still true now?

How can you find out?)– Notorious Criminal behavior (not “xx is a crook”)– Injury in trade, business or profession (job in-

competency)


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What is Defamation?

You are sitting an a staff lounge and hear a teacher state that he has heard Susie, a 13 year old student, is having sex with her uncle. The teacher states further that Susie probably asks for “it” because she dresses so provocatively.

What is your reaction, what duty do you have?


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What is Infliction of Mental Distress?

Must exceed the “bounds of human decency”

Construed to create serious mental anguish distress

Is intentional


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Very hard to prove, but– Discipline that embarrasses, ridicules, humiliates a student

in front of peers probably qualifies• Examples: walk around building with books on head,

standing for a long time with foot raised, facing into corner of room, placing student in closet--

– Infliction of mental distress??,

• Others?

Must show respect for students even when disciplining


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Scenarios-Intentional Infliction of Mental Distress?– A staff member speaks harshly to a 10 year student.

– A staff member tells a student he will keep her after school if she doesn’t “shut her trap”

– A staff member makes a student wear his gum on his nose for 2 hours during class time

– Fed up with his shouting out answers and not raising his hand, a teacher places a student in “time out” (an isolated space in the classroom) for 10 minutes, for 2 hours (class periods), for an entire day, for a week.


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– For punching another student for the 3rd time a student is kept in the principal’s office during breaks (recess, lunch hour) for one week

– The class clown is sent outside the classroom and told to spend 10 minutes entertaining the rest of the class through the outside window. He seems to enjoy the attention

– Others?


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What is False Imprisonment?

Illegally detaining a person/student– Must have reasonable basis– Must be for a reasonable time

Can legally detain a student & prevent participation in– Playground activities, recess, other extra-curricular school

activities, after school if proper arrangements are made for transportation

– Lunch breaks?


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What is False Imprisonment?

Scenario: You notice a physical education teacher blocking the entry from the girl’s locker room while he “teases” the middle school female students trying to enter the gym.

The girls are obviously frustrated and are not responding well to his actions and tell him they need to get to class on time. He does not move and continues to “tease” the girls. Is this false imprisonment?

Other examples?


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What is Trespassing on Personal Property?

Confiscating, interfering with student’s personal property without proper authority– Happens when take personal property during the school day

(violation of school rules, can be disruptive, cause harm to student or others)

– Can confiscate, but not keep• Dangerous item? Contact parent, return to parent, do not give

back to student

– Cannot damage, forget to give back


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What is an Unintentional Tort?

Tort Violation-Negligence First, there must be a legally imposed DUTY to exercise due care (duty

to supervise, warn, notify, provide safe school free of dangerous conditions)

– That of a reasonable professional/staff member (same credential, same geographic areas-Wa State) under same or similar circumstances to protect foreseeable plaintiffs from unreasonable risk of harm

Second, a BREACH/failure of that duty Third, CAUSATION/Proximate Cause (breach caused harm-causal

relationship to actual injury) Fourth, resulting DAMAGES


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Standard of Reasonable Care?

Basic, fundamental question is “Could the acts leading to injury/death been avoided if…– School Officials exercised reasonable care?

• Did they know, or should they have known of the potential harmful situation before it occurred?

• Did they promptly investigate to determine extent of potential danger (imminent?)

• Did they report the potential danger to school officials?

– Higher standard for younger children, chemistry teacher, physical education teacher.

– Students do not possesses same level of maturity, insight, caution, and knowledge as an adult


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Breach of Duty?

Different job responsibilities have differing levels of supervision

Question is--did conduct of school staff meet the standard of care of a prudent person in the same or similar conditions?

Expected to take prudent steps, based on duty to supervise students, when reasonably foreseeable harm may come to students.


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Proximate Cause?

Has to be evidence to make a legal link DIRECTLY to the failure of the school staff member to act prudently in a given situation

– Courts ask, “Was actual injury based on a school staff members behavior or lack thereof?

– Example-teacher leaves classroom unsupervised, injury occurs-preventable if teacher had been present? Did teacher have established classroom rules?

– No set rules, subject to court interpretation (judge/jury)

Other situations?


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Injury?

Has to be provable injury, or no liability Injury has to be due to acts committed or a

failure to act prudently in a given situation Plaintiff must show compensatory damages If willful, wanton negligence = maybe punitive

damages--Meaning


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Defenses for Negligence Comparative Fault in Washington (degree of

negligence) If the plaintiff claiming injury can be shown to

share some of the fault, then damages awarded will be lessened by the percentage of plaintiff’s fault

Equal contribution to injury then no damages– Some cases find child under 7 cannot be assigned

fault, 7+ to 14 presumption of no fault, 14+ may be assigned fault, depending on circumstances

Meaning?


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Negligence Scenario

A 14 year old student in your district exited his school bus at his regular stop. He chose to go to the family mailbox before crossing the road and the bus driver drove the bus to the next stop.

As the student attempted to cross the road after picking up the mail, he was truck by a speeding logging truck.

Where will the fault be assigned?


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Negligence Scenario

Wash school bus drivers are to be certain students safely cross the road before the stop sign is returned to the side of the bus and the bus continues down the road.

Both bus driver (school district) and truck driver can be found to share fault


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Defenses for Negligence

Assumption of Risk when participate willingly in an activity with risks– Idea is students assume a element of risk to

• Willingly participate and benefit in activity

– Athletics, pep squads, intramural sports• Others?

Cannot dismiss school liability if– Fail to meet the reasonable standard of care based on

• Age, maturity, risk, and nature of risk associated with activity

– Must provide safety equipment, be certain activity area is safe


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Defenses for Negligence

Immunity (sovereign immunity-king can do no wrong) Ministerial acts (must perform)

– Transportation, open board meetings, attendance, reporting suspected child abuse, developing a school calendar

Discretionary acts (do not have to perform)– Field days, allowing outside groups to use school facilities

before/after school hours, field trips, deciding types of extracurricular activities

Others?


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What are Supervisory Duties?

Must provide reasonable supervision when students under care of school authorities– Reasonableness is decided in court by judge/jury

(Question of fact) Each situation is different

– Nature of activity, age/number of students involved, quality and quantity of supervision

Younger students-more supervision


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Before School– Some form for students arriving on school grounds before

school day officially begins• Problems, issues are foreseeable if no supervision is provided

– No expectation of a guarantee students will not be harmed at some time

Best Practice: Inform parents school personnel not available before a certain, defined time.


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Scenario– The school has informed parents, in all home languages,

that school personnel are not available before 7:15 AM to supervise students arriving earlier.

– Parents are discouraged from bringing their students before 7:15 AM.

– Is the school relieved of any liability for students who arrive before 7:15 AM?


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Maybe or maybe not. Court will look to several factors– It is not students who bear the burden of their presence, because

parents have dropped them off– Are there periodic supervisory checks?– Have there been previous problems?

• Records of assaults by non-students-then must provide intense supervision

• Heavy traffic near the school-then must provide some level of supervision

• Students violating safety rules-may be a comparative fault situation if students mature enough to understand consequences of violating safety rules


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Scenario: Your school’s day does not begin until 8:30 AM. The building principal uses a periodic supervision technique by walking around campus including a “walk-by” the food service delivery area in back of the building

Jose, a nine year old, was shot in eye with a paper clip by an older, non-student, Peter, at about 8:05 AM while the principal had walked around the corner of the building


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Jose’s parents sue the school, claiming the school violated its standard of care by not supervising students before school. The claim states that a reasonable, prudent school official knew, or should have known that Peter was a known bully when he attended your school and knew or should have known that Peter was on campus many times before school and before Jose was hurt

The principal admits he knows about Peter’s previous pranks, but did not know Peter was on campus on the day that Jose was hurt. (What is a much better approach?)


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Court will likely find that, because the principal knew students arrived early and a former student bully often came on campus, it was foreseeable an injury could occur, he needed to provide for more intense supervision

In the real-life case (Titus v. Lindberg) the court also found that the principal had not notified parents of any rules for early-arriving students

What is the lesson of this case?


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Supervision During School– Courts assume schools are safe places– In loco parentis means school must

provide reasonable supervision– Staff have duty to warn students of

consequences of participating in dangerous behavior


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Supervision After School– If no assigned duties, then no liability– Parents need to be informed, include information in student

handbook, place in school policy• Must pick up students promptly after school is out• Keep students home after dark• Others?

– Generally no duty to provide extensive supervision beyond a reasonable period of time

– Enrolled student? Must take reasonable steps to protect them from harm


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Scenario– A 3rd grade teacher in your district has asked her

students to clean up the classroom after school. She leaves the room for a few minutes, leaving the students unsupervised. One of the students rummages through her desk, finds a sharp edged letter opener and subsequently injures another student with the letter opener.

– Is the teacher liable?


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May or may not be liable. In Richard v. St. Landry Parish School Board (1977) AN OLD CASE, the teacher was found not to be liable because she had forbidden students to go near her desk. The court held for the teacher because the students disobeyed her rule.

What are other possible holdings?


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Field trips– Mere extension of normal school activities– But students in unfamiliar places, therefore a need

for greater supervision– Standard of care depends on age, maturity of the

students– Best Practice-acceptable to use parent

chaperones, but be sure to train them how to supervise. Need to know nature of activity, about problem students, etc.


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Scenario: One hundred and ten eighth grade students in your school district took field trip to a local court. During a break, under the supervision of teachers and chaperones, the students crossed a street to eat lunch at a local restaurant

Three of the students finished their lunch early and asked permission to cross the street to meet with the a teacher waiting for them in the courthouse. The teacher in charge at the restaurant gave them permission and warned them to be careful while crossing the street


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Before crossing the street one student looked both ways and moved out into the street and was struck by a car

Is the school district liable? In the case, King v. Kartenson (1986), the Tennessee

Court of Appeals found that the injured student was 13, had no hearing or vision problems and the street was not considered dangerous

What might happen in your area?


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How do You Avoid Liability? (Essex)

Be aware of the standard of care for your position and those whom you serve

Ensure that the facility and grounds where you work is as safe as possible for all who come to use it

If expected to foresee a danger, then be vigilant and identify dangers

You have a legal duty to inspect, supervise, and provide a safe environment for students and staff


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If you are reasonable and prudent you will likely survive a court’s scrutiny

School grounds should be accessible (H/C) and safe for authorized visitors

Refrain from assault and battery (no corporal punishment in Wash)


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Keep student’s personal information confidential, share only with those in “need to know” loop. Remember to operate in good faith with no intent to harm

Do not coerce a student to use equipment or participate in an activity if they express serious apprehension. If student is injured, liability may result

Other suggestions? List from your experience, from the book.

Ch 6, Schl Personnel District Liab Hardison/Wheaton HU 11-12 1 Chapter Six School Personnel &...

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