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Past commentaries have covered issues
of school security, where the focus of the discussion was
on such topics as peer sexual harassment, search and seizure,
and the involvement of police officers (e.g., School
Resource Officers) in student disciplinary matters. The intent
in this month’s edition is to discuss another critical and
interrelated aspect of school operation, maintaining school
safety and potential liability for student injury.
School Safety. Legal experts agree
that a major responsibility of today’s educational leaders is to
provide a healthy, safe, and hazard free school environment that
lessens the likelihood of injury to students. What makes it
difficult to carry out this responsibility is the fact that
school personnel at all levels of education are faced on a daily
basis with the potential for accidents (unforeseen occurrences)
involving students; especially in such high risk areas as the
elementary school playground, science and vocational education
laboratories, physical education, interscholastic athletics, and
student off-campus field trips.
While school officials, administrators,
teachers, and other school system personnel cannot guarantee
that the school environment will be “accident free,” prudence
must be practiced to lesson the possibilities of student injury
happening. Vacca and Evans (1986) As past case law demonstrates,
despite the best efforts of diligent school principals,
teachers, coaches, custodians and others student injury remains
a fact of life. Vacca and Bosher (2003)
Can all injuries to students be prevented
by school personnel when there is no guaranteed system of doing
so? Is it prudent to guarantee parents that their children will
be kept injury free when in attendance at school and at school
sponsored functions? What level of care can students and parents
expect from school administrators, teachers, and other school
personnel? Can administrators, teachers, and other school
personnel be held liable for injuries suffered by students? The
purpose of this commentary is to explore these questions and the
implications for school board policy.
Tort Liability: What is a tort?
According to Black’s, a tort is not a crime. It is not a
breach of contract. A tort is a civil wrong (individuals suing
individuals). Premised on the notion that an injured person
should be allowed to recover something from the person who
injured him or her, the remedy usually sought in a tort action
takes the form of legal (money) damages. Black’s Law
Dictionary (1999)
There are four categories or types of tort
that apply in school situations and these are: (1)
intentional torts (e.g., assault and battery, false
imprisonment), (2) defamation (the twin torts of libel
and slander), (3) negligent torts (conduct that falls
below an established or acceptable standard), and (4) civil
rights torts (the application of federal constitutional
and/or statutory protections). Of the four types, the
negligent tort represents a major source of student injury
lawsuits taken against public school personnel. Vacca and Bosher
(2003)
Negligent Torts. Searching for
negligence is a case-by-case exercise. More specifically, a
determination of the presence or absence of negligence in
a given situation is made by applying the reasonable man
standard (recast today as the reasonable person
standard) to the specific set of facts present in a
particular situation. Thus, the following question must be
answered: “Given the set of facts present in this situation,
what would a reasonable person (e.g., administrator,
teacher, coach) have done or not done?” As one source reminds
us, individuals only can be held liable for the consequences of
their acts or their failures to act that are the proximate
cause of injury to others. Cambron-McCabe, et al. (2004)
In a school setting, administrators and
teachers “are not the insurers of safety of students…and may be
charged only with reasonable care such as a parent of ordinary
prudence would exercise under comparable circumstances.” And,
they only can be held responsible, accountable, and liable for
those things that are foreseeable. Rock v School
District (N.Y. 1986)
The Application of State Law. In
analyzing student injury situations in search of negligence,
the application of relevant state law is critical. For
example, in Virginia, negligence is defined as a breach
of a legal duty owed by one person to another person. Friend
(1998) As such, in that jurisdiction
the element of legal duty owed must be a major element to
establish in the legal analysis. Moreover, in Virginia the
standard applied to public school personnel is one of gross
negligence. Different from simple errors in judgment,
gross negligence “shows an utter disregard of prudence
amounting to complete neglect of safety to others…. A [m]ere
lack of attention or inadvertence does not constitute gross
negligence.” Gross negligence indicated the presence of a
reckless disregard of a legal duty and the consequences
on others. Friend (1998)
Criteria of Negligence. As explained
above, negligence involves conduct by one person that
falls below an established or acceptable standard that results
in an injury to another person. Because negligence in one
situation may not be present under another set of facts, courts
must decide cases based on the application of specific criteria
to each case. As applied to student injury situations these
criteria include the following questions: (1) In this situation
did the administrator, or teacher, or coach, or other staff
members present owe the injured student a duty (e.g.,
instruction, supervision, hazard free environment)? (2) Was that
duty breached? (3) Was the breach of duty the proximate cause of
the student’s injury? As a general rule, the burden will be on
the injured student to establish negligence on the part of
school personnel as the proximate cause of his/her injury. Vacca
and Bosher (2003)
School Board Immunity.
Traditionally, there have been several defenses available to
public school boards, administrators, and teachers in negligent
tort suits. Among these defenses (e.g., assumption of
risk, contributory negligence) is the case hardened doctrine of
sovereign immunity. Where local school board immunity
still exists, state law extends that shield to school boards for
all policy decisions, absent a showing of willful and wanton
conduct. Tollett v Orleans Parish School Board (La.
2001)
Until recent years, immunity from negligent
tort actions enjoyed by local school boards did not extend to
school system administrators and employees. In 2004, however,
things have changed and public school policy-makers must
consider the applicability of governmental immunity to employees
when drafting local school board policy.
School Employee Immunity. As a
general rule, where state law has not abolished governmental
immunity for local school boards, school officials,
administrators, and employees are entitled to assert this
defense, where there is no evidence of actual malice or intent
to injure someone. Coffee County School District v Snipes
(Ga. 1995) In Virginia, for example, a public school
superintendent and school principal are entitled to share the
school board’s shield of immunity by virtue of their job
responsibilities. Banks v Sellers (1982). What is more,
the immunity shield might also extend to a teacher who is (1)
acting within the scope of his/her employment, (2) exercising
professional judgment and discretion, and (3) not charged with
gross negligence. Lentz v Morris (1988) There are other
state law jurisdictions where the local school board’s immunity
shield might even extend to school bus drivers. Cotton v
Pascal (Miss. 2001)
Emerging Issues and Case Law
The cases presented below were selected for
the following three reasons: they demonstrate (1) the breadth of
issues found in the body of negligent tort law, (2) the
importance of applying state law to personal injury situations,
and (3) the reluctance of judges to interfere with the
professional judgment and discretion of school officials and
school personnel, absent evidence of willfulness or intent to
harm.
Ex Parte Spivey (2002) is an Alabama
case involving a vocational center director and a teacher. An
injured student who had been severely cut when using a spindle
wood shaper in a vocational class sought damages in court. In
reaching a decision the court held that the teacher and director
were entitled to state employee immunity. Regarding the teacher,
four reasons were cited for granting immunity and these were:
(1) the teacher’s actions were not willful, (2) the safety guard
on the spindle wood shaper was on the machine when it was
transferred to the vocational center from another school, and
(3) the teacher could not foresee that an injury would result
from using the shaper.
Doe v Unified School District
(2003) involved a lawsuit taken on behalf of a sixteen-year-old
female student who had been subjected to sexual abuse by her
stepfather. The abuse had taken place since elementary school.
In the suit, the school district, the elementary school
principal, and guidance counselor were alleged to have acted
negligently in their handling of the matter. It seems that at
some time early in the chain of events the student claimed that
the counselor and the principal received information about the
abuse. The court denied the principal’s motion for summary
judgment. The court held that the counselor was not liable for
negligent failure to protect the student from sexual abuse. In
the court’s opinion the counselor had not undertaken an
affirmative duty to protect the student, and she had not created
an undue risk of harm to the student. Regarding the school
board, the court did not find any evidence of either negligent
hiring or negligent retention of either employee as a proximate
cause of injury suffered by the student.
Harris ex rel. Harris v McCray
(2003) involved a fifteen-year-old football player who
suffered a heatstroke during a practice session. Among those
named in the suit was the football coach. A trial court ruled
against the injured athlete citing the State of Mississippi’s
sovereign immunity statute. The Supreme Court of Mississippi
affirmed. In the appellate court’s view, since the football
coach was exercising discretion in the exercise of his job
duties as coach, he and his employers were immune from
liability.
In Scott v Savers (2003), parents
and their son sued a high school guidance counselor claiming
that the counselor provided inaccurate information to the NCAA
resulting in the student losing out on receiving a four-year
college hockey scholarship. The parents claimed, among other
things, that the counselor had been negligent. Even though the
facts were not disputed, both the trial court and the state
appellate court agreed that the parents’ complaint should be
dismissed. In the opinion of both courts the counselor’s actions
in providing information to the NCAA, albeit inaccurate
information, was a discretionary function entitling him to
immunity under state law.
Cooper v Paulding County School District
(2004) is a Georgia case involving a parent who was injured when
she ran into a school parking lot gate. She had come on school
grounds to pick up her daughter. She sued the school principal
and the superintendent for negligence. A trial court granted a
summary judgment to the defendants and the parent appealed the
judgment for the principal. The court of appeals held for the
principal. In the court’s opinion, the school principal’s
decisions regarding the gate were discretionary in nature. And,
since there was no evidence of actual malice or intent to harm
on the part of the principal, he was covered by the doctrine of
governmental immunity.
Policy Implications
Whatever the defense available to public
school personnel, negligence has no place in schools and
at school-sponsored events. To put it another way, no student
(as well as a parent, visitor, staff member) in school or in
attendance at a school event should be injured because of
unnecessary and unreasonable risks created by the
negligent acts of a school official, administrator, teacher, or
other staff member. Where negligence is shown to be the
proximate cause of injury, the person (school official or
school personnel) at fault should be held liable for the
harm done to the injured person.
Suffice it to say, the implications for
local school board policy are several. What follow are five
suggestions to consider as school system policies are
reviewed. School system policies must make it clear that:
- It is
the intent of the school board to establish and maintain a
safe and healthy educational environment in every school
building and at every school-sponsored activity.
-
Administrators, teachers, and other school system personnel
(functioning as a safety team) are required to report all
hazardous and unsafe conditions to supervisory personnel.
-
Immediate steps will be taken to remedy hazardous and unsafe
conditions brought to the attention of school officials.
-
Administrators, teachers, and other school system personnel
are expected to exercise due diligence and care in planning
for and carrying out their responsibilities with students.
-
Administrators, teachers, and other staff members are
expected to foresee the consequences of their actions and
inactions, and to take appropriate steps to prevent student
injuries.
One final thought is in order. School
safety must be a team effort. Every member of the school
staff must do his/her part in preventing student injury and
harm.
Resources Cited
Banks v Sellers, 294 S.E. 2d 862 (Va. 1982)
BLACK’S LAW DICTIONARY, Seventh Edition
(1999)
Cambron-McCabe, McCarthy, and Thomas,
PUBLIC SCHOOL LAW: TEACHERS’ AND STUDENTS’ RIGHTS, Fifth Edition
(2004)
Coffee County School District v Snipes, 454
S.E.2d 149 (Ga. App. 1995)
Cooper v Paulding County School District,
2004 Ga. App. LEXIS 279 (Ga. App. 2004)
Cotton v Pascal, 782 So.2d 1215 (Miss.
2001)
Doe v Unified School District, 255 F.Supp.
2d 1239 (D.Kan. 2003)
Ex Parte Spivey, 846 So.2d 322 (Ala. 2002)
Friend, Charles E., PERSONAL INJURY LAW IN
VIRGINIA, Second Edition (1998)
Harris ex rel. Harris v McCray, 867 So.2d
188 (Miss. 2003)
Lentz v Morris, 372 S.E.2d 608 (Va. 1988)
Rock v School Central Square School
District, 494 N.Y.S.2d 579 (N.Y. App. Div. 1985)
Scott v Savers, 663 N.W.2d 715 (Wis. 2003)
Tollett v Orleans Parish School District,
782 So.2d 681 (La. App. 4th Cir. 2001)
Vacca and Evans, “TORTS.” In Thomas, THE
YEARBOOK OF SCHOOL LAW 1986 (NOLPE, 1986)
Vacca and Bosher, LAW AND EDUCATION:
CURRENT ISSUES AND COURT DECISIONS, Sixth Edition (2003)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
