TORT LIABILITY AND SCHOOL STAFF 2008: DUTY OF CARE REVISITED

Overview

In 2008 student safety and security remain top priorities in every public school system in this nation. In today’s schools a major emphasis is placed on eliminating threats and acts of violence and mayhem caused by crazed students and outsiders (including terrorists) armed with explosive devices, guns, and other weapons. Most recently, the horrible Virginia Tech tragedy emphasized that public school officials, school administrators, and school staff members must work together as a team to provide a safe and secure learning environment where teachers can teach and students can learn. To this end public school systems, in cooperation with federal, state, and local agencies (e.g., police and fire departments, medical professionals, crisis intervention teams), are constantly and proactively working to make school buildings and grounds safe and secure places. At the same time a spate of highly publicized issues involving acts of sexual harassment (both employee/student and student/student), potential exposure of students to sexual solicitation by predators, and bullying (especially cyber-bullying) also have dominated the education scene.

In addition to concentrating on the high profile safety and security concerns and issues raised in the paragraph above, a growing number of jurisdictions, for example the Commonwealth of Virginia, have extended sovereign immunity (once solely possessed by local school boards as a defense in negligence cases) to school principals and classroom teachers. Lentz v. Morris (1988) It must be emphasized, however, that whether or not a local school board’s immunity defense extends to a local school system employee (including bus drivers) is solely a matter of state law. Anderson v. Anoka Hennepin I.S.D. 11 (Minn. 2004)

At the same time, the more traditional safety and security duties and responsibilities of building principals, classroom teachers, coaches, bus drivers, and other personnel have been expanded by state statutes. As a general rule, these added responsibilities often include such matters as protection from youth gang activity and violence; preventing exposure of students to foods that cause allergic reactions; protecting against the damaging effects of severe storms (e.g., hurricanes, tornadoes); prevention of student suicide; eliminating drug (including performance enhancing drugs in athletics), alcohol, and tobacco possession and abuse; immediately acting in situations of suspected parental child abuse; eliminating hazing; and, others. Ironically, for reasons stated in the above paragraphs, these expanded safety and security responsibilities (where the potential for liability is ever present) are more often than not placed on the back burner.

The purpose of this commentary is to briefly revisit (albeit generally) the important, and sometimes forgotten, area of tort liability for student injury where negligence on the part of public school personnel is alleged. Not intended as a comprehensive restatement of the law on torts, the information included in this commentary focuses on basic principles associated with negligent torts in an effort to underscore policy implications for local school boards as they strive to make school buildings and grounds safe, secure, and injury free.

Negligent Tort Liability

A tort is a civil wrong, other than breach of contract, for which a court will provide a remedy in the form of damages. Vacca and Bosher (2003) Torts can be placed in three major categories: intentional interference, civil rights torts, and negligence. Of the three, the negligent tort most often involves public school student injury litigation.

Negligence can be defined as “[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation….The term denotes culpable carelessness.” Black’s (1999) When one’s actions fall below a standard of care expected of the average person, and injury results, negligence is established. As applied to school principals, classroom teachers, coaches, and other school system personnel, the standard will substitute that particular employee as the “reasonable and prudent person” in the analysis. The standard of negligence applied to public school personnel is one of gross negligence (i.e., more than ordinary and slight negligence, and errors in judgment; gross negligence denotes a reckless disregard for the welfare and safety of another person).

Standard of Care. As a general rule, courts presume that because students cannot be held to the same degree of care as adults less is expected of them, and more is expected of teachers, coaches, and other staff members who supervise students. Vacca and Bosher (2003) In public school work there are some areas of the curriculum where the standard of care owed to a student by his/her teacher or other school system employee in charge is greater. As Alexander and Alexander have summarized, “As the risk involved in an act increases, the standard of care of the actor likewise increases. The standard of care of a woodshop teacher is, of course, greater than that of a school librarian because the risk of being injured while handling power tools is much greater than the risk of being injured while reading a book. Similarly, chemistry classes require a high standard of care.” Alexander and Alexander (2005)

Criteria for Establishing Negligence. Establishing liability for negligence must be accomplished on a case-by-case basis, and each case is fact based. Where negligence might be established in one situation it might not be established under other circumstances in another situation. Also, just because a student is injured does not per se establish liability for negligence. A key element in establishing negligence is proximate cause (i.e., establishing a direct causal link between an act, or failure to act, of one party and the injury suffered by the other party.) Simmons v. Columbus County Board of Education (N.C.App. 2005)

Foreseeability. The key to establishing liability for negligence is foreseeability. Smith v. Half Hallow Hills Central School District (E.D.N.Y. 2004) School principals, classroom teachers, coaches, and other staff members working directly with students are expected to be alert and take “reasonable care” of students under the circumstances. Moreover, they are expected to act in a reasonably objective manner and to take reasonable steps to correct dangerous conditions and, where appropriate, warn students of potentially dangerous conditions. However, as legal experts remind us, “[t]his does not mean that a teacher is expected to anticipate every situation in which one child may injure another.” Fischer, Schimmel, and Kelly (1999) It also does not mean that employee liability will attach where a student exposes himself/herself to known danger.

School principals, teachers, coaches, and other staff members are expected to foresee and not be deliberately indifferent to the possible consequences of an act or condition that likely could result in injury to students in their charge. Vacca and Bosher (2003) Where an employee exposes students to foreseeable injury and the injury suffered was a foreseeable consequence of a failure to take appropriate action liability will attach. Conversely, where an injury to a student could not be “reasonably anticipated” no liability will attach. McGregor v. City of New York (N.Y. 1993)

Educators are expected to take reasonable measures to keep students safe and injury free, especially in situations where students are participating in a potentially dangerous activity (e.g., football practice, physical education class, vocational education laboratory), or a special relationship exists between the staff member and their students (e.g., a field trip; an overnight, out-of-town band trip). Some courts have held that to succeed in a negligence claim the injured student must have been under the direct control and custody of school personnel at the time the injury occurred. Winter v. Board of Education (N.Y. 2000)

Defenses. In negligence actions there are specific defenses available to school officials and school system personnel. As a general rule, the defenses available are: sovereign immunity (generally available to school officials, but only available to school system personnel if state law permits), assumption of risk (“normal” risks assumed by the person engaged in an activity, e.g., playing football), comparative negligence (the injured party’s degree or percentage of fault), and contributory negligence (where an injured party’s injury was at least partly his/her own fault). Vacca and Bosher (2003)

Case Law Examples

It is important to think about all of the areas where traditional tort liability concerns face public school officials, administrators, classroom teachers, coaches, school bus drivers, and other school personnel. In the research associated with preparing the 2006 and 2007 Supplements for our text, LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS (Sixth Edition, 2003), several court decisions emerged where several of the principles of negligent tort law are demonstrated. A sampling of the case law on point follows.

In Lindaman v. Vestal Central School District (N.Y. 2004), the importance of a elementary school classroom teacher matching the appropriateness of an activity to the grade level of the students involved, to help mitigate the possibility of student injury, is emphasized. That same year, in an Illinois case, the court emphasized the importance of a high school chemistry teacher requiring students to use protective eye wear while conducting experiments. Hill v. Galesburg Community School District 205 (Ill. 2004)

The importance of providing adequate supervision of students is highlighted in Mei Kay Chan v. City of Yonkers (N.Y. 2006). However, another New York State court made it clear, in a case involving a student injured on an elementary school playground slide, that liability does not attach where “sudden and unforeseen events” were the proximate cause of the injury suffered by the student. Swan v. Town of Brookhaven (N.Y. 2006) To put it another way, school officials, administrators, classroom teachers, coaches, bus drivers, and other personnel should not be liable in situations where a student’s injuries were the result of sudden, unforeseeable, and spontaneous acts of the injured student or other students.

More recently, a Florida appellate court made it clear that a public school, at least through the high school level, “owes a general duty of supervision to students placed within its care, and this duty is based on the school’s standing partially in place of the parent.” However, said the court, a school “has no duty to supervise all movements of all pupils at all times.” In this case a student had violated local school board attendance policies and left school grounds. In the court’s view, off-campus dangers confronting high school students are risks that should be confronted by students and their parents. Kazanjian v. School Board of Palm Beach County (Fla. 2007)

The importance of forseeability is demonstrated in a recent Georgia case involving a student who had been beaten with a baseball bat by another student in a college dormitory. The injured student alleged that college officials failed to address existing harassment and failed to take proper disciplinary actions against students who fostered an environment of hatred on campus toward students believed to be homosexual. The court reasoned that while school officials have a duty to exercise ordinary and reasonable care for a student’s safety, they only are obligated to take reasonable steps to protect students from foreseeable acts of violence. To establish negligence and succeed in court it must be demonstrated that in ordinary prudence college officials might have foreseen that some injury would result from their acts or omissions. Love v. Morehouse College, Inc. (Ga. 2007)

Kraynak v. Youngstown City School District (Ohio 2007) involved a father’s negligence action arising from what he claimed was a teacher’s failure to timely report suspected child abuse. In this case the court emphasized the importance of limiting the analysis to the specific language of the state statute. To the court, the statute’s words set the proper standard of reasonableness to apply. Moreover, the statute grants immunity from liability to the person required to report the suspected abuse to proper authorities.

The subject of immunity also was the focus of a recent New Mexico case. Henning v. Rounds (N.M. 2007) involved a law suit brought by a teacher whose contract had no been renewed. Here the court emphasized the importance of school administrators “staying within the scope of their authorized duties” for purposes of successfully claiming the immunity protections of the state’s Tort Claims Act.

Finally, plaintiff parties are expected to exercise due diligence in initiating their negligence claim against school officials in court. A recent North Carolina case offers an example of the critical role played by statutes of limitations. In Hicks v. Wake County Board of Education (N.C. 2007) the court distinguished between a three-year statute of limitations for claims based on liability and a two-year statute of limitations for a contract claim against a local board of education. Injured parties must adhere to the required timeline.

Policy Implications

Suffice it to say, there is no place for negligence in public school work. Moreover, as the case law discussed above demonstrates the policy implications are many. Administrators, classroom teachers, coaches, and other school system personnel having direct contact with students must recognize and accept their responsibilities to work as a team to maintain a safe and secure learning environment.

Local school system policies must make it clear that no student in a classroom or laboratory, on a school playground or athletic field, in attendance at school sanctioned and controlled activities, or on a school bus shall be exposed to unreasonable risks of harm because of a staff member’s negligent behavior or his/her deliberate indifference to safety. Also, board policy must contain a clear expectation that all personnel have a duty to exercise reasonable care for students, especially those in the elementary grades, and those engaged in high risk curricular areas (e.g., chemistry, vocational education, and physical education) and high risk activities such as field trips and interscholastic athletics.

Resources Cited

Alexander, Kern, and Alexander, M. David, AMERICAN PUBLIC SCHOOL LAW, Sixth Edition (Thompson-West 2005)

Anderson v. Anoka Hennepin, ISD, 11, 678 N.W.2d 651 (Minn. 2004)

Fisher, Louis, Schimmel, David, and Kelly, Cynthia, TEACHERS AND THE LAW, Fifth Edition (Longman 1999)

Garner, Bryan A., Editor in Chief, BLACK’S LAW DICTIONARY, Seventh Edition (West Group 1999)

Hicks v. Wake County Board of Education, 653 S.E.2d 236 (N.C. App. 2007)

Hill v. Galesburg Community School District 205, 805 N.E.2d 299 (Ill.App.3rdDist. 2004)

Henning v. Rounds, 171 P.3d 313 (N.M. 2007)

Kazanjian v. School Board of Palm Beach County, 967 So.2d 259 (Fla.App.4Dist. 2007)

Kraynak v. Youngstown City School District, 876 N.E.2d 587 (OH App.7Dist. 2007)

Lentz v. Morris, 372 S.E.2d 608 (Va. 1988)

Lindaman v. Vestal Central School District, 785 N.Y.S.2d 549 (N.Y.Sup.Ct.A.D.3Dept. 2004)

Love v. Morehouse College, Inc., 652 S.E.2d 624 (Ga.App. 2007)

McGregor v. City of New York, 602 N.Y.S.2d 669 (N.Y.D. 1993)

Mei Kay Chan v. City of Yonkers, 824 N.Y.S.2d 380 (N.Y.A.D.2Dept. 2006)

Simmons v. Columbus County Board of Education, 615 S.E.2d 69 (N.C. App. 2005)

Smith v. Half Hallows Central School District, 349 F.Supp.2d 521 (E.D.N.Y. 2004)

Swann v. Town of Brookhaven, 821 N.Y.S.2d 265 (N.Y.A.D.2Dept. 2006)

Vacca, Richard S., and Bosher, William C., Jr., LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS, Sixth Edition (LexisNexis 2003), and 2006 and 2007 SUPPLEMENTS

Winter v. Board of Education, 70 N.Y.S.2d 142 (N.Y.A.D. 2000)

Richard S. Vacca
Senior Fellow CEPI

Note: The views expressed in this commentary are those of the author.

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