Chapter Nineteen Negligence in Schools Negligence in Schools

Definition of Negligence Legal Duty of Care Legal Duty of Care Breach of the Duty of Care Breach of the Duty of Care Actual Damage Actual Damage Causal Proximity Causal Proximity

Sources of Liability in Schools Sources of Liability in Schools Occupiers' Liability Occupiers' Liability Supervisory Obligations Supervisory Obligations Statutory Obligations Statutory Obligations

Some Negligence Principles Some Negligence Principles Contributory Negligence Contributory Negligence Vicarious Liability Vicarious Liability Voluntary Assumption of Risk Voluntary Assumption of Risk Thin-Skulled Plaintiffs Thin-Skulled Plaintiffs Common Practice Common Practice

Determining Negligence Determining Negligence Negligence of Students Negligence of Students Interns and Substitute Teachers Interns and Substitute Teachers Volunteers Volunteers Outside School Property Outside School Property Outside School Hours Outside School Hours

School Physical Plant School Physical Plant School Construction Sites School Construction Sites Gymnastics Gymnastics Handicapped Students Handicapped Students Impaired Invitees Impaired Invitees Ignoring Injuries Ignoring Injuries

Limitations on Liability Limitations on Liability Exemplary Cases Exemplary Cases

Plumb Case Plumb Case Cropp Case Cropp Case Wiggins Case Wiggins Case Simard Case Simard Case Road Pizza Case Road Pizza Case

Judicial Decisions Judicial Decisions Plumb Decision Plumb Decision Cropp Decision Cropp Decision Wiggins Decision Wiggins Decision Simard Decision Simard Decision Road Pizza Decision Road Pizza Decision

Conclusions Conclusions

NegligenceNegligence

A tort is a private wrong . . . that causes damage A tort is a private wrong . . . that causes damage and for which courts will award compensation.  and for which courts will award compensation. 

A person who commits a tort is known as a A person who commits a tort is known as a tortfeasor,tortfeasor,

the party whose person, property, or reputation is the party whose person, property, or reputation is damaged is called a victim.  damaged is called a victim. 

Torts may be intentional, (E.g. assault, false Torts may be intentional, (E.g. assault, false imprisonment, infliction of mental suffering, libel, imprisonment, infliction of mental suffering, libel, and slander) or unintentional as in the case of and slander) or unintentional as in the case of negligence and strict liability.  negligence and strict liability. 

Torts and contracts together form most of . . . Torts and contracts together form most of . . . private law.  private law. 

Definition of NegligenceDefinition of Negligence Negligence is the failure to do Negligence is the failure to do

something that a reasonable and something that a reasonable and prudent person would do or the prudent person would do or the commission of an act that such a commission of an act that such a person would not commit.  person would not commit. 

There are four elements of negligence, There are four elements of negligence, all of which must be present for there all of which must be present for there to be negligence.  These are to be negligence.  These are legal duty of care, legal duty of care, breach of the duty of care, breach of the duty of care, actual damage, and actual damage, and causal proximity.  causal proximity. 

Four Elements of NegligenceFour Elements of Negligence

Legal Duty of Care Legal Duty of Care To be negligent the defendant must have had a duty To be negligent the defendant must have had a duty

of care in law, . . . to the plaintiff. . . . of care in law, . . . to the plaintiff. . . . school boards and teachers have a duty of care to school boards and teachers have a duty of care to

pupils while they are involved in curricular or pupils while they are involved in curricular or extracurricular activities (on or off the school extracurricular activities (on or off the school premises)premises)

A duty of care may also exist outside of school hours A duty of care may also exist outside of school hours (on the school grounds and within board-operated (on the school grounds and within board-operated pupil transportation).  pupil transportation). 

Breach of the Duty of Care Breach of the Duty of Care The defendant must have breached that duty by a The defendant must have breached that duty by a

positive act or by an omission.  . . . positive act or by an omission.  . . . The duty of care involves taking precautions to The duty of care involves taking precautions to

guard against foreseeable risks, but not all risks are guard against foreseeable risks, but not all risks are foreseeable, even by an alert and competent person.  foreseeable, even by an alert and competent person. 

Actual Damage Actual Damage The plaintiff must have suffered actual damage or The plaintiff must have suffered actual damage or

injury.  (meaning personal injury of a pupil) injury.  (meaning personal injury of a pupil) .Even serious breaches of a duty of care are not .Even serious breaches of a duty of care are not

negligent if no one suffers damage as a result.  . . negligent if no one suffers damage as a result.  . . compensation paid to a victim of negligence depends compensation paid to a victim of negligence depends

on the extent of the damage; hence, no damage means on the extent of the damage; hence, no damage means no compensation and no case for the courts.  no compensation and no case for the courts. 

Causal Proximity Causal Proximity damage suffered by the plaintiff must be the result of damage suffered by the plaintiff must be the result of

the defendant's negligent action or inaction . . .  This is the defendant's negligent action or inaction . . .  This is called causal proximity, proximate cause, or legal called causal proximity, proximate cause, or legal cause. cause. 

the defendant's behaviour need not be the only cause the defendant's behaviour need not be the only cause

of the damage.  A “but-for” test is frequently applied.  of the damage.  A “but-for” test is frequently applied.  One event is said to be the cause of another when the One event is said to be the cause of another when the

first event is necessary for the second, whether or not first event is necessary for the second, whether or not there are intervening events.. . there are intervening events.. .

courts are reluctant to find negligence if the damage is courts are reluctant to find negligence if the damage is very remote from the breach of the duty of care.  very remote from the breach of the duty of care. 

Sources of Liability in Schools Sources of Liability in Schools Negligence in schools generally involves Negligence in schools generally involves

a breach of the duty of care that the a breach of the duty of care that the school board and its employees owe to school board and its employees owe to their pupils their pupils

Two areas of responsibility to their Two areas of responsibility to their pupils where breaches can constitute pupils where breaches can constitute negligence are negligence are The obligation to keep their premises and The obligation to keep their premises and

equipment safe and equipment safe and to provide reasonable supervision of pupils.  to provide reasonable supervision of pupils. 

Occupiers' LiabilityOccupiers' Liability

The school board has an obligation as the occupier The school board has an obligation as the occupier of the school facility, to eliminate, as much as of the school facility, to eliminate, as much as possible, risks to persons who enter either the possible, risks to persons who enter either the school or the school grounds.  school or the school grounds. 

three categories of persons three categories of persons trespassers, licensees, invitees, and compulsees (possibly trespassers, licensees, invitees, and compulsees (possibly

the 4the 4THTH)—who may be found on school premises and for )—who may be found on school premises and for whom the standard of care is different.  whom the standard of care is different. 

Trespasser Trespasser board has no obligation to make the school safe for board has no obligation to make the school safe for

someone who breaks in to commit theft or someone who breaks in to commit theft or vandalism (is a trespasser even if also a student)vandalism (is a trespasser even if also a student)

Traps cannot be set for trespassers, and Traps cannot be set for trespassers, and trespassers must be warned about any unusual trespassers must be warned about any unusual danger if their presence on the premises is known.  danger if their presence on the premises is known. 

Occupiers' LiabilityOccupiers' LiabilityLicenseeLicensee A licensee is a guest of the occupier for social A licensee is a guest of the occupier for social

reasons.  reasons.  standard of care required is higher than for the standard of care required is higher than for the

trespasser. trespasser.  A child trespasser may, depending on his or her age, A child trespasser may, depending on his or her age,

be considered a licensee if the premises contain be considered a licensee if the premises contain something attractive, called an “allurement” or an something attractive, called an “allurement” or an “attractive nuisance”, that induces the child to “attractive nuisance”, that induces the child to enter.  enter. 

Children on open school grounds for recreation Children on open school grounds for recreation outside of school hours are generally considered outside of school hours are generally considered licensees. licensees.

licensee must be protected from unusual dangers of licensee must be protected from unusual dangers of which the occupier is aware, which the occupier is aware,

E.g. known defective playground equipment should E.g. known defective playground equipment should be repaired or removed from the playground.  be repaired or removed from the playground. 

Occupiers' LiabilityOccupiers' LiabilityInviteeInvitee a person who has entered the premises a person who has entered the premises

for official or business purposes.  for official or business purposes.  positive obligation to protect the positive obligation to protect the

invitee from unusual dangers that the invitee from unusual dangers that the occupier is or should be aware of.  occupier is or should be aware of. 

occupier must take reasonable occupier must take reasonable measures to ensure that the premises measures to ensure that the premises are safe.  are safe. 

Pupils at school to receive an Pupils at school to receive an education are at least invitees.  education are at least invitees. 

Supervisory Obligations Supervisory Obligations

Teachers must provide pupils with a level of Teachers must provide pupils with a level of supervision that will prevent foreseeable accidents supervision that will prevent foreseeable accidents from happening.  from happening. 

The legal principle “in loco parentis”, (meaning in The legal principle “in loco parentis”, (meaning in place of the parent) gives the teacher place of the parent) gives the teacher responsibility similar to that of a careful and responsibility similar to that of a careful and prudent parent.  Teaching is the only profession for prudent parent.  Teaching is the only profession for which the required standard of care to clients is an which the required standard of care to clients is an extrapolation of parental behaviour. extrapolation of parental behaviour. 

courts have required teachers to have specialized courts have required teachers to have specialized knowledge of safety principles in their own subject knowledge of safety principles in their own subject areas ( e.g. physical education and subjects with areas ( e.g. physical education and subjects with shop or laboratory components).  shop or laboratory components). 

Four Supervisory PrinciplesFour Supervisory Principles

The following four supervisory principles, . . . The following four supervisory principles, . . . Are representative of good practice in all Are representative of good practice in all provinces (Leduc, 460).  provinces (Leduc, 460). 

Students must be informed of the dangers Students must be informed of the dangers inherent in the activity and must be instructed inherent in the activity and must be instructed in safe practices before becoming involved in in safe practices before becoming involved in the activity.  the activity. 

The teacher must be present during the The teacher must be present during the activity and must be observing it with a view activity and must be observing it with a view to avoiding accidents.  to avoiding accidents. 

The location and the equipment must be The location and the equipment must be suitable for the activity and must be safe.  suitable for the activity and must be safe. 

Parental consent must be obtained for Parental consent must be obtained for activities undertaken outside the regular activities undertaken outside the regular school program.  school program. 

Contributory NegligenceContributory Negligence

When responsibility is apportioned When responsibility is apportioned on a percentage basis to all parties on a percentage basis to all parties whose behaviour was negligent, whose behaviour was negligent, including the victim. including the victim. 

A very young child cannot be guilty A very young child cannot be guilty of contributory negligence.  An older of contributory negligence.  An older child may be; but it depends on the child may be; but it depends on the circumstances (Lord Denning)circumstances (Lord Denning)

Vicarious LiabilityVicarious Liability When one person is held legally responsible for When one person is held legally responsible for

the negligence of another even though the the negligence of another even though the former is not personally negligent.  former is not personally negligent. 

Employers are responsible for the torts of their Employers are responsible for the torts of their employees committed in the course of their employees committed in the course of their employment.  employment. 

Vicarious liability increases the probability that Vicarious liability increases the probability that victims can recover damages, since the employer victims can recover damages, since the employer normally has more financial resources than the normally has more financial resources than the employee.  employee. 

Employers are encouraged, on the one hand, to Employers are encouraged, on the one hand, to promote safety in their enterprises and, on the promote safety in their enterprises and, on the other hand, to purchase liability insurance.  other hand, to purchase liability insurance. 

School boards in most, but not all, provinces School boards in most, but not all, provinces purchase such insurance.  purchase such insurance. 

Voluntary Assumption of Risk Voluntary Assumption of Risk

The voluntary assumption of risk is a The voluntary assumption of risk is a complete defence against a negligence complete defence against a negligence action, action,

if the victim understood that the activity was if the victim understood that the activity was risky but willingly chose to participate.  risky but willingly chose to participate. 

This defence can be successful when the This defence can be successful when the victim is an adult who has been fully victim is an adult who has been fully informed of the risks and has. . .accepted informed of the risks and has. . .accepted them.  them. 

the voluntary assumption of risk almost the voluntary assumption of risk almost never succeeds as a defence against a never succeeds as a defence against a charge of negligence in cases involving child charge of negligence in cases involving child victims.victims.

Common Practice Common Practice

Conformity to common or general Conformity to common or general practice or to custom within a profession practice or to custom within a profession is usually a defence against negligence.  is usually a defence against negligence. 

This principle is being increasingly This principle is being increasingly adopted in school cases but is most adopted in school cases but is most widely applied in medical malpractice widely applied in medical malpractice suits.  suits. 

Juries consisting of lay persons listen to Juries consisting of lay persons listen to the evidence of expert witnesses as to the evidence of expert witnesses as to whether the procedures used by the whether the procedures used by the defendant are commonly accepted defendant are commonly accepted within the profession. within the profession. 

Determining Negligence Determining Negligence

General principles General principles

Negligence of Students Negligence of Students Teachers are in much the same position as Teachers are in much the same position as

parents in regards to the negligent acts of parents in regards to the negligent acts of children whom they are required to supervise. children whom they are required to supervise. 

Teachers are not responsible unless they Teachers are not responsible unless they

themselves have been negligent in discharging themselves have been negligent in discharging their supervisory responsibilities. their supervisory responsibilities. 

If a student is injured because of the actions of If a student is injured because of the actions of another student, the teacher can be held another student, the teacher can be held contributorily negligent if he or she did not contributorily negligent if he or she did not provide adequate supervision.provide adequate supervision.

Interns and Substitute TeachersInterns and Substitute Teachers A beginning teacher or a substitute who has no A beginning teacher or a substitute who has no competence in the subject matter can usually competence in the subject matter can usually prevent accidents as adequately as an experienced prevent accidents as adequately as an experienced teacher teacher

However:However: Negligence law makes few concessions to Negligence law makes few concessions to

beginners and even fewer to those who attempt an beginners and even fewer to those who attempt an activity for which they are not qualified.  activity for which they are not qualified. 

an unqualified teacher has a strong obligation to an unqualified teacher has a strong obligation to avoid any risky activity (in for example, avoid any risky activity (in for example, laboratories, shops, and many physical education laboratories, shops, and many physical education activities) regardless of what the regular teacher's activities) regardless of what the regular teacher's lesson plan calls for.  lesson plan calls for.  E.g. a substitute teacher who cannot swim can have the E.g. a substitute teacher who cannot swim can have the

children read about artificial respiration.  children read about artificial respiration.  A planned practice on the use of power tools can become a A planned practice on the use of power tools can become a

classroom lecture on safety with such tools.  classroom lecture on safety with such tools.  Laboratory experiments should not be attempted in classes Laboratory experiments should not be attempted in classes

where the teacher is not qualified to supervise them.  where the teacher is not qualified to supervise them. 

Volunteers Volunteers

Volunteers are sometimes used in Volunteers are sometimes used in school situations to assist teachers school situations to assist teachers in providing supervision, particularly in providing supervision, particularly on field trips. on field trips. 

In general, volunteers are in the In general, volunteers are in the same position regarding negligence same position regarding negligence as teachers.  as teachers. 

They can be held responsible, but They can be held responsible, but they benefit from the vicarious they benefit from the vicarious liability of the school board.  liability of the school board. 

Outside School Property Outside School Property

School boards and teachers are not generally held School boards and teachers are not generally held responsible for accidents occurring off the school responsible for accidents occurring off the school grounds except during authorized school activities grounds except during authorized school activities such as field trips and extracurricular activities such as field trips and extracurricular activities during which teachers continue to be responsible for during which teachers continue to be responsible for supervising pupils.  supervising pupils. 

The board . . . has no control over property that it The board . . . has no control over property that it does not own or occupy, and therefore cannot be does not own or occupy, and therefore cannot be expected to keep it safe.  expected to keep it safe. 

Teachers are not expected to supervise children who Teachers are not expected to supervise children who are both outside the schoolyard and not involved in are both outside the schoolyard and not involved in school activitiesschool activities

HoweverHowever Courts have found a duty of care that can be Courts have found a duty of care that can be

discharged by instructing children in traffic safety as discharged by instructing children in traffic safety as part of the school program.  part of the school program. 

Outside School HoursOutside School Hours Clearly supervision must be provided when the Clearly supervision must be provided when the

school is in session and during morning and school is in session and during morning and afternoon recesses when held.  afternoon recesses when held. 

Teachers must supervise during the lunch Teachers must supervise during the lunch break if pupils are permitted to remain at break if pupils are permitted to remain at school, school,

Supervision should also be provided for a Supervision should also be provided for a period of time before school begins in the period of time before school begins in the morning and perhaps after it ends in the morning and perhaps after it ends in the afternoon.  afternoon. 

School authorities must determine the hours School authorities must determine the hours during which supervision will be provided and during which supervision will be provided and inform parents of these in writing.  inform parents of these in writing. 

Parents should be advised not to send their Parents should be advised not to send their children to school before supervision is children to school before supervision is available.  available. 

Gymnastics Gymnastics

In avoiding accidents and consequent liability, In avoiding accidents and consequent liability, gymnastics presents very difficult problems gymnastics presents very difficult problems for teachers and schools.  for teachers and schools. 

Cases are common, injuries are serious, and Cases are common, injuries are serious, and awards are often in the millions of dollars.  awards are often in the millions of dollars.  Gymnastics accidents can result in partial or Gymnastics accidents can result in partial or complete paralysis of a studentcomplete paralysis of a student

The standard of care required of gymnastics The standard of care required of gymnastics instructors goes well beyond that of the instructors goes well beyond that of the careful and prudent parent.  careful and prudent parent. 

The use of spotters—the teacher and other The use of spotters—the teacher and other students who closely monitor an exercise and students who closely monitor an exercise and apply force to the gymnast to prevent a bad apply force to the gymnast to prevent a bad landing or other accident—is crucially landing or other accident—is crucially important in doing gymnastics safely. important in doing gymnastics safely. 

Three casesThree cases

Three cases clarify the dangers and Three cases clarify the dangers and the standard of care required. the standard of care required.

““McKay . . .” While practising . . on McKay . . .” While practising . . on the parallel bars, fell between the the parallel bars, fell between the bars, landed on his head, and bars, landed on his head, and sustained injuries that resulted in sustained injuries that resulted in permanent paralysis from the neck permanent paralysis from the neck down. down.

Case #2Case #2

““Myers . . .” teacher [was] in the Myers . . .” teacher [was] in the gymnasium with 40 students, (2 gymnasium with 40 students, (2 classes combined because of the classes combined because of the absence of another teacher) absence of another teacher)

the plaintiff attempted a straddle the plaintiff attempted a straddle dismount,. . . and fell onto the slab dismount,. . . and fell onto the slab mats below the rings, injuring himself.  mats below the rings, injuring himself. 

At trial, the teacher was found to be 80 At trial, the teacher was found to be 80 percent negligent and the plaintiff percent negligent and the plaintiff contributorily negligent by 20 percent.contributorily negligent by 20 percent.

Case #3Case #3 ““Jones . . .” case - 15-year-old plaintiff was Jones . . .” case - 15-year-old plaintiff was

attempting a roll-over on a trampoline when he attempting a roll-over on a trampoline when he became untucked and fell to the mat, injuring became untucked and fell to the mat, injuring his neck.  his neck. 

The exercise had been explained and The exercise had been explained and demonstrated by a student teacher and was demonstrated by a student teacher and was being spotted by the student teacher and the being spotted by the student teacher and the regular classroom teacher.  regular classroom teacher. 

The plaintiff had had some previous experience The plaintiff had had some previous experience on the trampoline.  on the trampoline. 

The judge found that the activity was not The judge found that the activity was not inherently risky, and that the supervision was inherently risky, and that the supervision was adequate. adequate. 

The teachers were not found negligent.  The teachers were not found negligent. 

Conclusions Conclusions

School boards and teachers owe a strong School boards and teachers owe a strong duty of care to pupils under their care.  duty of care to pupils under their care. 

The school premises must be kept as The school premises must be kept as safe as reasonable care and skill can safe as reasonable care and skill can make them, and teachers must supervise make them, and teachers must supervise pupils in the manner of a careful and pupils in the manner of a careful and prudent parent.  prudent parent. 

If the failure to conform to this standard If the failure to conform to this standard results in injury to a student, the board results in injury to a student, the board and teacher can be held liable for the and teacher can be held liable for the tort of negligence.  They may be tort of negligence.  They may be required to financially compensate the required to financially compensate the victim for his or her damages.  victim for his or her damages. 

Under the principle of vicarious liability, teachers Under the principle of vicarious liability, teachers who are guilty of negligence while acting within who are guilty of negligence while acting within the scope of their employment will have their share the scope of their employment will have their share of the award for damages paid by the board or its of the award for damages paid by the board or its insurance company.  insurance company. 

Schools are normally safe places but certain Schools are normally safe places but certain locations and activities increase risk. locations and activities increase risk. 

Construction activity on the site of an operating Construction activity on the site of an operating school increases the risk and may result in younger school increases the risk and may result in younger children being lured into the construction zone. children being lured into the construction zone. 

Within the school itself, shops and laboratories are Within the school itself, shops and laboratories are more dangerous than classrooms.  Physical more dangerous than classrooms.  Physical education activities, particularly gymnastics, education activities, particularly gymnastics, involve substantially increased risk.  involve substantially increased risk. 

Ignoring student reports of injuries could Ignoring student reports of injuries could make a court award against a teacher likely.  make a court award against a teacher likely. 

limitations and defences . . .  Several provinces limitations and defences . . .  Several provinces have statutes that prevent suits against have statutes that prevent suits against teachers or impose very strict time-limits for teachers or impose very strict time-limits for the suits to be filed.  Other provinces (NB) the suits to be filed.  Other provinces (NB) require that the school board be allowed to require that the school board be allowed to investigate the alleged offence first.  investigate the alleged offence first. 

In court, teachers who have followed common In court, teachers who have followed common professional practice will normally not be held professional practice will normally not be held liable for negligence.  liable for negligence.