Risk Management:Creating a Safe Environment

What is Risk Management?

Risk management is a coordinated, effective, pre-response Risk management is a coordinated, effective, pre-response and post-response to a school’s district’s liability and post-response to a school’s district’s liability exposures developed through planning, organizing, exposures developed through planning, organizing, directing, and monitoring a district’s activities and assetsdirecting, and monitoring a district’s activities and assets

Risk management is the process of minimizing accidental Risk management is the process of minimizing accidental loss by anticipating and preventing the occurrence of loss by anticipating and preventing the occurrence of unplanned eventsunplanned events

Ingredients for risk management: Authority, Ingredients for risk management: Authority, Accountability, Responsibility, and Training (AART)Accountability, Responsibility, and Training (AART)

Principles of in loco parentisPrinciples of in loco parentis

Definite responsibility to the school for the welfare of each Definite responsibility to the school for the welfare of each student it serves in the absence of the student’s parent or student it serves in the absence of the student’s parent or guardianguardian

Components of Risk Management

Risk identificationRisk identification Risk assessmentRisk assessment Risk ControlRisk Control

Risk identificationRisk identificationImplementation of safety campaigns, safety Implementation of safety campaigns, safety instruction, warning signs, and maintenance instruction, warning signs, and maintenance carried by schools and etc.carried by schools and etc.

Risk assessmentRisk assessmentPeriodic check-ups on electrical wiring and Periodic check-ups on electrical wiring and appliances, plumbing and sewage systems, fire appliances, plumbing and sewage systems, fire drills, conditions of physical structures staircases, drills, conditions of physical structures staircases, grilled windows and laboratoriesgrilled windows and laboratories

Risk controlRisk control

Safety procedures such as the use of log books for Safety procedures such as the use of log books for recording past accidents, list of emergency recording past accidents, list of emergency telephone numbers, fire extinguishers and first aid telephone numbers, fire extinguishers and first aid boxesboxes

Why do we need risk management in schools?

It is not managerially possible for schools to completely It is not managerially possible for schools to completely eliminate risks nor fiscally prudent to insure potential riskeliminate risks nor fiscally prudent to insure potential risk

Schools cannot avoid accountability for its actions or Schools cannot avoid accountability for its actions or inactionsinactions

A well-planned, active program of risk anticipation and A well-planned, active program of risk anticipation and prevention is more preferable (a pro-active approach)prevention is more preferable (a pro-active approach)

What does it include?

Student and staff safetyStudent and staff safety HealthHealth

Child abuse/abduction, drug testing, drug testing and Child abuse/abduction, drug testing, drug testing and student athletes, drug testing and employees, student athletes, drug testing and employees, students/employees with Aidsstudents/employees with Aids

Chemical safetyChemical safety Environmental affairsEnvironmental affairs Property protectionProperty protection Contingency planningContingency planning SecuritySecurity

TransportationTransportation Third party liabilityThird party liability Contractual liabilityContractual liability

Implications for Risk Management

Accidents, incidents, or transgressions are organizational Accidents, incidents, or transgressions are organizational managerial problems, not people problems. They are often managerial problems, not people problems. They are often dealt with ex post facto rather than through active program dealt with ex post facto rather than through active program of risk anticipation and preventionof risk anticipation and prevention

Insurance should be thought of only as financial protection Insurance should be thought of only as financial protection for unexpected failure in risk management programs, not for unexpected failure in risk management programs, not as the sole remedy for all accidental lossas the sole remedy for all accidental loss

Risk factors diminish with the expansion of the practice of Risk factors diminish with the expansion of the practice of prevention law:prevention law:

The lower the knowledge of legal procedures and the The lower the knowledge of legal procedures and the practice of judgment and foreseeability is, the higher the practice of judgment and foreseeability is, the higher the incidence of liability, environmental, and personnel lossincidence of liability, environmental, and personnel loss

Effective risk management requires effective leadershipEffective risk management requires effective leadership

Due Process

There are two kinds of due process:There are two kinds of due process:

Procedural due processProcedural due process

Substantive due processSubstantive due process Procedural due processProcedural due process

It entails fair warning and fair hearingIt entails fair warning and fair hearing

Fair warning: A person must be aware of the rules to Fair warning: A person must be aware of the rules to follow, or behavior that must be exhibited, and the follow, or behavior that must be exhibited, and the potential penalties for violationpotential penalties for violation

Fair hearingFair hearing

The individual must be given written statement of the The individual must be given written statement of the charges and the nature of the evidencecharges and the nature of the evidence

The individual must be informed of certain procedural The individual must be informed of certain procedural rights rights

Adequate time must be provided to prepare a defenceAdequate time must be provided to prepare a defence

There must be an opportunity for a formal hearingThere must be an opportunity for a formal hearing

Substantive due processSubstantive due process It is concerned with the basic legality of a legislative It is concerned with the basic legality of a legislative

enactmentenactment Guideline to ensure substantive due process:Guideline to ensure substantive due process:

LegalityLegality

Sufficient specificitySufficient specificity

Reason and sensiblenessReason and sensibleness

Adequate disseminationAdequate dissemination

Appropriate penalitiesAppropriate penalities

Tort (Tortus in Latin)

Tort is an actionable wrong, exclusive of a breach of contract, that the Tort is an actionable wrong, exclusive of a breach of contract, that the law will recognize and set right. A tort is a legal wrong against the law will recognize and set right. A tort is a legal wrong against the person, property, or reputation of another (Tort ialah satu perbuatan person, property, or reputation of another (Tort ialah satu perbuatan salah di mana mangsa mengalami kecederaan fizikal, reputasi atau salah di mana mangsa mengalami kecederaan fizikal, reputasi atau pada hartanya)pada hartanya)

Classification of tort:Classification of tort:The direct invasion of some legal right of the individual (e.g. invasion The direct invasion of some legal right of the individual (e.g. invasion of privacy)of privacy)The infraction of some public duty by which special damage accrues The infraction of some public duty by which special damage accrues to the individual (e,g, denial of constitutional right)to the individual (e,g, denial of constitutional right)The violation of some private obligation by which damage accrues to The violation of some private obligation by which damage accrues to the individual (e.g. negligence)the individual (e.g. negligence)

Negligence is the primary basis of tort liability suits filed against Negligence is the primary basis of tort liability suits filed against school districtsschool districts

Kecuaian sebagai satu “tort”Kecuaian sebagai satu “tort”

““Kecuaian bukan setakat tidak mengambil peduli Kecuaian bukan setakat tidak mengambil peduli atau perlakuan chai … tetapi menampilkan konsep atau perlakuan chai … tetapi menampilkan konsep yang kompleks mengenai kewajipan, yang kompleks mengenai kewajipan, kemungkinan dan kerugian yang dialami oleh kemungkinan dan kerugian yang dialami oleh seseorang” (Hakim Lord Wright, 1934)seseorang” (Hakim Lord Wright, 1934)

Reasonable/Prudent Person (Orang yang munasabah/biasa serta waras)

Negligence is doing something that a reasonably prudent Negligence is doing something that a reasonably prudent person would not have done, or failing to do something person would not have done, or failing to do something that a reasonably prudent person would have done when that a reasonably prudent person would have done when confronted by like or similar circumstancesconfronted by like or similar circumstances

Reasonable/prudent person Reasonable/prudent person The defendant is not identified with an ordinary individual The defendant is not identified with an ordinary individual

who might occasionally do unreasonable things, instead, who might occasionally do unreasonable things, instead, he/she is identified as a prudent and careful person who is he/she is identified as a prudent and careful person who is always up to the standardalways up to the standard

(Pengetua/guru tidak perlu wajib menjadi seorang yang (Pengetua/guru tidak perlu wajib menjadi seorang yang dianggap sempurna tetapi memadai sekadar sebagai dianggap sempurna tetapi memadai sekadar sebagai seorang yang munasabah)seorang yang munasabah)

Duty and Standard of Care (Kewajipan berjaga-jaga)

The concept of “in loco parentis” is to be practicedThe concept of “in loco parentis” is to be practiced Duty is an obligation that derives from the special Duty is an obligation that derives from the special

relationship between parties such as that between relationship between parties such as that between an employee and a student, the an employee and a student, the district/government and an employee, or the district/government and an employee, or the district and a patron.district and a patron.

Standard of care is relative to the need and the Standard of care is relative to the need and the occasion, what is proper under one circumstance occasion, what is proper under one circumstance may be negligent under another.may be negligent under another.

The standard of care imposed upon school The standard of care imposed upon school personnel in carrying out this duty to supervise is personnel in carrying out this duty to supervise is identical to that required in the performance of identical to that required in the performance of their other duties. This uniform standard to which their other duties. This uniform standard to which they are held is the degree of care which a person they are held is the degree of care which a person of ordinary prudence, charged with comparable of ordinary prudence, charged with comparable duties, would exercise under the same duties, would exercise under the same circumstances. (California Supreme Court)circumstances. (California Supreme Court)

(Pentadbir dan guru di sekolah berada di bawah (Pentadbir dan guru di sekolah berada di bawah satu kewajipan bertindak secara good faith satu kewajipan bertindak secara good faith terhadap majikan mereka)terhadap majikan mereka)

Isu mengimbangi kewajipan berjaga-jaga dengan Isu mengimbangi kewajipan berjaga-jaga dengan keperluan memberi peluang kepada pelajar untuk keperluan memberi peluang kepada pelajar untuk memajukan kebolehan bertanggungjawab terhadap memajukan kebolehan bertanggungjawab terhadap keselamatan diri sendirikeselamatan diri sendiri

Kewajipan berjaga-jaga kepada pelajar oleh pihak Kewajipan berjaga-jaga kepada pelajar oleh pihak sekolah terdiri daripada dua aspek:sekolah terdiri daripada dua aspek:Memberikan penyeliaan yang cukup Memberikan penyeliaan yang cukup Menyediakan tempat dan kemudahan serta alat Menyediakan tempat dan kemudahan serta alat sekolah yang selamatsekolah yang selamat

Foreseeability

If a school administrator/teacher could have, or should If a school administrator/teacher could have, or should have, foreseen or anticipated an accident, the failure to do have, foreseen or anticipated an accident, the failure to do so may be ruled negligent.so may be ruled negligent.

The concept of foreseeability expects school employee to The concept of foreseeability expects school employee to perform as a reasonably prudent person of similar training perform as a reasonably prudent person of similar training and circumstances could perform.and circumstances could perform.

If the ordinary exercise of prudence and foresight could If the ordinary exercise of prudence and foresight could have prevented an accident, the courts have ruled schools have prevented an accident, the courts have ruled schools to be negligent when they have not avoided a foreseeable to be negligent when they have not avoided a foreseeable danger to students or adults.danger to students or adults.

Types of negligence

Nonfeasance: Failing to act when there is a duty to actNonfeasance: Failing to act when there is a duty to act Misfeasance: Acting, but in an improper mannerMisfeasance: Acting, but in an improper manner Malfeasance: Acting, but guided by a bad motiveMalfeasance: Acting, but guided by a bad motive Prerequisites for a negligence action:Prerequisites for a negligence action:

The defendant must have duty to plaintiffThe defendant must have duty to plaintiff

The defendant must have failed to exercise a reasonable standard of The defendant must have failed to exercise a reasonable standard of care in his/her actionscare in his/her actions

The defendant’s actions must be the proximate cause of the injury to The defendant’s actions must be the proximate cause of the injury to the plaintiffthe plaintiff

The plaintiff must prove that he/she suffered an actual injuryThe plaintiff must prove that he/she suffered an actual injury

Empat syarat untuk plantif menuntut ganti rugi Empat syarat untuk plantif menuntut ganti rugi terhadap defendanterhadap defendan

1.1. Kewajipan berjaga-jaga yang sedia adaKewajipan berjaga-jaga yang sedia ada2.2. Kewajipan dimungkari akibat defendan gagal Kewajipan dimungkari akibat defendan gagal

mematuhi tahap berjaga-jaga yang diperlukan mematuhi tahap berjaga-jaga yang diperlukan (berdasarkan ujian orang yang munasabah)(berdasarkan ujian orang yang munasabah)

3.3. Kemungkiran kewajipan oleh defendan Kemungkiran kewajipan oleh defendan menyebabkan plantif mengalami kecederaanmenyebabkan plantif mengalami kecederaan

4.4. Terdapat satu perhubungan yang rapat antara Terdapat satu perhubungan yang rapat antara kemungkiran dengan kecederaan plantifkemungkiran dengan kecederaan plantif

Common conditions resultingin tort reliability for negligence

Failure to provide adequate supervision (foreseeability + proximate Failure to provide adequate supervision (foreseeability + proximate cause (refer to case 1), general and specific supervision (refer to case cause (refer to case 1), general and specific supervision (refer to case 2)2)

Foreseeability: If the school district could have, should have, foreseen Foreseeability: If the school district could have, should have, foreseen or anticipated an accident, the failure to do so may be rule negligentor anticipated an accident, the failure to do so may be rule negligent

Failure to aid the injured/sickFailure to aid the injured/sick Creation of further damage through misguided effortsCreation of further damage through misguided efforts Permitting students to play unsafe gamesPermitting students to play unsafe games Permitting use of defective equipmentPermitting use of defective equipment Maintaining attractive nuisances (unprotected, unguarded, unsafe Maintaining attractive nuisances (unprotected, unguarded, unsafe

condition that attract a child to play – refer to case 3)condition that attract a child to play – refer to case 3) Failure to provide adequate instructionFailure to provide adequate instruction Failure to give adequate warningFailure to give adequate warning

Entrusting dangerous devices to students incompetent to Entrusting dangerous devices to students incompetent to use themuse them

Taking unreasonable risksTaking unreasonable risks Improper organized field tripsImproper organized field trips

Cases

Case 1Case 1 A student was hit by a bat swung by another student. The A student was hit by a bat swung by another student. The

teacher then was standing 30 feet away, passing milk, at teacher then was standing 30 feet away, passing milk, at the time of accident. Was the teacher liable?the time of accident. Was the teacher liable?

Case 2Case 2A six year old student was injured at a construction site A six year old student was injured at a construction site next to an elementary school where remodeling was being next to an elementary school where remodeling was being done. School officials knew of the potential dangers at the done. School officials knew of the potential dangers at the site and reminded students daily to stay away from the site and reminded students daily to stay away from the area. No other precautions to protect students were taken. area. No other precautions to protect students were taken. Was the school liable?Was the school liable?

Case 3Case 3 A young girl, who sustained an injury while watching a A young girl, who sustained an injury while watching a

baseball game. While playing around an abandoned long-baseball game. While playing around an abandoned long-jump pit, she was frightened by a dog. She fell backward jump pit, she was frightened by a dog. She fell backward and cut her hand on a piece of broken glass in the pit that and cut her hand on a piece of broken glass in the pit that had been covered by sand. The girl presented evidence had been covered by sand. The girl presented evidence that the school knew of the dangerous condition as the that the school knew of the dangerous condition as the school’s janitor and school authorities had received written school’s janitor and school authorities had received written notification of the condition of the pit. Was the school notification of the condition of the pit. Was the school liable?liable?

Case 5Case 5 Cliff Brown, a fifth-grade teacher, was standing at the Cliff Brown, a fifth-grade teacher, was standing at the

front of his class when there was a knock at the door. He front of his class when there was a knock at the door. He opened the door to find a person he vaguely recognized. opened the door to find a person he vaguely recognized. She said her name was Mrs. Parson and she needed to take She said her name was Mrs. Parson and she needed to take her son Brian to the dentist. Brian got his books, left, and her son Brian to the dentist. Brian got his books, left, and was never seen again.was never seen again.

Safety issuesSafety issues Releasing a child to an adultReleasing a child to an adult School personnel should be very cautious about the physical custody School personnel should be very cautious about the physical custody

of childrenof children Who has the parental right?Who has the parental right? The legal parent is that person whom the legal system recognizes as The legal parent is that person whom the legal system recognizes as

having the legal rights of parenthoodhaving the legal rights of parenthood How about child born to biological parents who are not married?How about child born to biological parents who are not married? In the case of divorce, it depends on whether the court grants In the case of divorce, it depends on whether the court grants

sole/jount custodysole/jount custody

Case 6Case 6 A high school band member, drowned in a hotel pool A high school band member, drowned in a hotel pool

while on a trip with the band. The student dove in the pool while on a trip with the band. The student dove in the pool and minutes later was found at the bottom of the pool. and minutes later was found at the bottom of the pool. Two chaperons assigned to supervise the pool activity Two chaperons assigned to supervise the pool activity immediately provided mouth-to-mouth resuscitation and immediately provided mouth-to-mouth resuscitation and continued to do so until the ambulance arrived. The continued to do so until the ambulance arrived. The parents of the student claimed the school was negligent in parents of the student claimed the school was negligent in failing to provide adequate supervision for their son, who failing to provide adequate supervision for their son, who did not know how to swim.did not know how to swim.

Case 4Case 4 A student fell into a ditch while attempting to catch a pass A student fell into a ditch while attempting to catch a pass

in a game of football played during the school’s lunch in a game of football played during the school’s lunch period. The principal was aware of the ditch on the period. The principal was aware of the ditch on the school’s property but had made minimal attempts to warn school’s property but had made minimal attempts to warn students and no attempt was made to fill the pitchstudents and no attempt was made to fill the pitch

Types of negligence

OmissionOmission

Harm occurs due to the lack of care the law expects of a Harm occurs due to the lack of care the law expects of a reasonable individual (e.g. nonfeasance)reasonable individual (e.g. nonfeasance)

CommissionCommission

Taking an improper action when there is a duty to acatTaking an improper action when there is a duty to acat Misfeasance may be either an act of commission or an act Misfeasance may be either an act of commission or an act

of omissionof omission

Waiver of liability (permission slips)

It is not true under the law that a waiver of liability truly It is not true under the law that a waiver of liability truly protects the school or the teacher from court actionprotects the school or the teacher from court action

Schools cannot be absolve of their obligation toward Schools cannot be absolve of their obligation toward students by a parental waiver or releasestudents by a parental waiver or release

Safety Issues

School ViolenceSchool Violence Gang behaviorsGang behaviors Search and seizureSearch and seizure

Gang behaviors Gang behaviors Policy regarding Gang Activity (Developed by the Policy regarding Gang Activity (Developed by the Midlothian, Illinois School Board)Midlothian, Illinois School Board)

No student on or about school property or at any school No student on or about school property or at any school activity shall:activity shall:Wear, possess, distribute, display or sell any clothing, Wear, possess, distribute, display or sell any clothing, jewelry, emblem, badge, symbol, sign, or other things that jewelry, emblem, badge, symbol, sign, or other things that is evidence of membership or affiliation in a gangis evidence of membership or affiliation in a gangCommit any act or omission or use any speech either Commit any act or omission or use any speech either verbal or nonverbal (gestures, handshakes, etc) showing verbal or nonverbal (gestures, handshakes, etc) showing membership or affiliation in a gangmembership or affiliation in a gang

Use any speech or commit any act or omission in Use any speech or commit any act or omission in furtherance of the interests of any gang/gang activity, furtherance of the interests of any gang/gang activity, including but not limited to:including but not limited to:

A. Soliciting others for membership in a gangA. Soliciting others for membership in a gang

B. Requesting any person to pay protection or otherwise B. Requesting any person to pay protection or otherwise intimidating or threatening any person:intimidating or threatening any person:

C. Committing any other illegal act or other violation of C. Committing any other illegal act or other violation of school district policiesschool district policies

D. Inciting other students to act with physical violence D. Inciting other students to act with physical violence upon any other personupon any other person

Search and seizureSearch and seizureBalancing the school’s legitimate need to obtain information and the Balancing the school’s legitimate need to obtain information and the students’ right to privacystudents’ right to privacyA search shall be initiated by reasonable suspicion (less rigorous than A search shall be initiated by reasonable suspicion (less rigorous than probable cause required by a police officer)probable cause required by a police officer)Level of suspicion varies on the circumstances or the situation (in case Level of suspicion varies on the circumstances or the situation (in case emergency)emergency)Source reliabilitySource reliabilityScope of the search: degree of intrusiveness from search of a locker to Scope of the search: degree of intrusiveness from search of a locker to a strip searcha strip searchReasonable suspicion vs. common senseReasonable suspicion vs. common senseLockers remain the exclusive property of the school (fairly low degree Lockers remain the exclusive property of the school (fairly low degree of suspicion is needed)of suspicion is needed)

Bookbags and pursesBookbags and purses

Requires a higher standard of protection for students, Requires a higher standard of protection for students, therefore school authority must exercise greater care therefore school authority must exercise greater care

Strip searchesStrip searches

The most controversial searchThe most controversial search

The courts have generally condemned strip searches in The courts have generally condemned strip searches in public schoolspublic schools

A body cavity search is the most intrusive type of search A body cavity search is the most intrusive type of search and should not be conducted by school employeeand should not be conducted by school employee

Student Discipline

Due process: Procedural and substantive due processDue process: Procedural and substantive due process Corporal punishment is physical punishment applied to Corporal punishment is physical punishment applied to

modify behaviormodify behavior The use of corporal punishment is based on the concept of The use of corporal punishment is based on the concept of

in loco parentisin loco parentis Corporal punishment must be differentiated from assault Corporal punishment must be differentiated from assault

and batteryand battery Assault is the intentional thereat of harmful or offensive Assault is the intentional thereat of harmful or offensive

contact. The words must be accompanied by some overt contact. The words must be accompanied by some overt act, no matter how slight, that adds to the threatening act, no matter how slight, that adds to the threatening character of the wordscharacter of the words

Battery is the actual intentional infliction of harmful or Battery is the actual intentional infliction of harmful or offensive bodily contact. It is the intent to make contact offensive bodily contact. It is the intent to make contact and not intent to make injury.and not intent to make injury.

For example, a teacher has intended only to threaten a For example, a teacher has intended only to threaten a student by grabbing the student’s arm and accidentally student by grabbing the student’s arm and accidentally injures the studentinjures the student