Mr. Finkel’s mind was racing as fast as he was driving. What would he see when he got to the school? Would his daughter be screaming in pain? How badly was she bleeding? Did she lose all her fingers? Three minutes earlier, the school nurse had called him at work and said there was an accident at school. “Ashley was climbing on the gate out on the field and her hand got stuck on something. I don’t know exactly what happened but there was a lot of blood. The rescue squad is on the way.”
Mr. Finkel wheeled into the parking lot fearing the worst. As he drove up to the fence where the accident had occurred, he realized his daughter has already been taken to the hospital. The principal and a few others were milling around the scene of the accident. As he ran up to the gate, he saw the blood and — to his disbelief — he found a severed finger lying near the gate.
It couldn’t be reattached.
Mr. Moes ran a tight ship in his woodshop class. Before the students ever used a power tool, they were fully instructed in safety and proper use of the tool. Mr. Moes tested the students on paper and watched how they used the equipment. If they didn’t use it properly, he corrected them and made sure they understood how to operate it safely before they could use it without his strict supervision.
It was Friday afternoon during fourth period when Jack screamed out over the din of the table saw. He was pushing a board between the saw blade and the guide when the guide suddenly started vibrating, causing the blade to become unprotected for a split second. The saw severed three fingers from Jack’s left hand.
Alan and Dave were pretty good friends in middle school and in their upper-middle-class suburban neighborhood. They went to each other’s houses for dinner, played video games, and wrestled in Dave’s basement. The kids in this neighborhood walked to school, and Alan and Dave were no exception.
In the high school parking lot, a group of about five or six kids gathered. They proceeded to walk the paved path through the woods toward the junior high school, passing a security guard along the way. The night before was Halloween, and Alan, Dave, and their group had collected pounds of candy while trick-or-treating. This morning, the kids had brought some of the spoils from the night before.
Suddenly, Dave thought it would be fun to see Alan’s reaction when he hurled a handful of M&Ms his way. Alan, who was in a pretty bad mood that morning, twirled around and went to hit Dave with his skateboard but he blocked the attempt. It’s not clear what went down from that point, but we know that Dave punched Alan in the face. Alan flinched but decided not to retaliate. Shortly, they came to the front of the junior high school, where a half dozen or more teachers and administrators were supervising while students entered the building. Alan walked past everyone and went to the nurse’s office, where he collapsed.
The parents of the injured students in each of the above scenarios ended up suing their children’s schools for negligent supervision. They each claimed that the school had breached the professional standard of care by failing to provide reasonable and appropriate supervision. If this supervision had been provided, according to their claims, then their children would not have been injured.
I was an expert witness in all three of these cases. Before we look at each of the three cases through the eyes of an education administration, supervision, and safety expert, I want to provide some legal background and focus. Then, I will give you my opinion as to the schools’ liability in each case.
Doctrine of in loco parentis:
The doctrine of in loco parentis means, in essence, that the individual or agency that provides for a child stands in the place of a parent and is charged with a parent’s rights, duties, and responsibilities. Under this doctrine, a school must act in relation to the child as the “reasonably prudent parent” would, protecting the child from danger and preventing the child from engaging in activities that could result in self-injury. Thus, a duty can arise from the “parental” relationship the school assumes.
The applicability of the doctrine of in loco parentis to duty should be distinguished from negligence as related to the activity in which the child is engaged. In loco parentis does not extend beyond matters of conduct and discipline. So, the school is responsible to correct students’ conduct and discipline them as a reasonable parent would, in accordance with state laws. Schools need to establish a student code of conduct with consequences for violation of the code, much like a parent says to their child “You are to be home by 9:00 PM and if you don’t show up you’re grounded for the weekend.” Once the school has established such rules and consequences they have a duty to implement them. If they fail to implement they might be breaching their standard and considered negligent.
The reasonable and prudent professional
A school is not required to guarantee a student’s safety, but to act reasonably in view of the probability — not possibility — of injury. Schools and other agencies that supervise children are responsible for providing reasonably safe premises and supervision, given the nature and conduct of children.
The standard of care required is that of a reasonable and prudent professional. Acting as a prudent citizen or parent might act is not adequate, and it is not the standard of care required in a school. A school must go beyond what a reasonable parent would do because professionals in schools have specific training that most parents do not. An educator is expected to exercise the degree of skill commensurate with his or her position. For example, a physical education instructor would have to act not only as any ordinary, reasonable, and prudent person, but also as a reasonable and prudent physical educator who has specific training and skills. The standard of care, then, would be measured by the judgment, knowledge, experience, perception of risk, and skill that a physical education teacher typically would have.
There is another aspect to the standard of care: the reasonable care concept. Negligence is the failure to exercise a reasonable degree of care under the circumstances. What should be considered “reasonable” depends on the situation and is usually determined by three elements — the activity, the environmental conditions, and the participants.
The test of foreseeability
Foreseeability is an important consideration in establishing the absence of reasonable care. The scope of liability is determined by whether there is a foreseeable risk of injury. Conduct cannot be considered unreasonable if the risk cannot be foreseen. In a given situation, a reasonable and prudent professional might foresee potential consequences that others in the same situation without his or her training and skills would not. As such, that professional has a responsibility to guard against potential consequences.
Depending on the circumstances of a situation, a reasonable and prudent professional should be able to foresee a danger to the student — a danger that presents an “unreasonable risk of harm” against which the student must be protected.
Now, let’s look at each case.
To keep cars out of the playing fields but allow service vehicles to enter when necessary, the school had installed a cantilever gate, which moves along rollers at the top and bottom. The gate had exposed, 4-inch rollers that could be covered, but the school opted not to purchase covers and install them over the rollers. Any reasonable administrator should have been able to foresee that, when students are outside at recess with the cantilever gate unlocked, the absence of protective covers exposed students to a risk of serious injury.
A group of girls was playing on the fence, pushing the gate back and forth along the rollers while some of them hung from the rail. Ashley jumped on the rail and her friends gave her a ride — one she never expected would change her life. A roller crushed and severed Ashley’s fingers. In time, she would need to learn how to play using both hands again.
I rendered an opinion that the school, through its administration, breached the professional standard of care. An injury of this nature was foreseeable. The company that made the gate provided safety covers for the rollers because there was a serious risk of harm if someone hung from the top rail — just like Ashley did. The school also breached the professional standard of care by failing to provide sufficient supervision in an area where they could have heard or seen the girls and intervened to stop dangerous behavior. In other words, the school didn’t take reasonable steps to make its premises safe.
The table saw:
The school, through its administration and teacher, did everything right — to a point. The teacher warned students of the dangers of the saw. He taught them how to use it safely and tested them to be sure they demonstrated competence in its use. The one thing the teacher did wrong was to fail to maintain the saw according to the manufacturer’s specifications.
When he first noticed the blade guard vibrating, the teacher reached into a drawer at the workbench, took out a bolt, and replaced the one that seemed to be causing the problem. The teacher caused the next problem. The bolt did not match the specifications and failed to keep the cover in place, shaking loose and ultimately leading to Jack’s injury. For all the things the teacher had done right, he failed to maintain the saw in a proper manner. As a reasonable and prudent professional, this was his responsibility — a necessary intervention to provide students with reasonable protection from harm.
My opinion was that the school, through its teacher, breached the professional standard of care when it failed to properly inspect and maintain its equipment. This breach caused Jack’s injury.
In this case, my opinion was that the school, through its administration, was not liable for Alan’s injuries. The school met the professional standard of care. The injury to the student was caused not by anything the school did or failed to do, but by the sudden and unforeseen action of another student. The school knew of one fight in the area 6 years prior, but it had happened in the woods, not on the path. The school provided the appropriate level of supervision by assigning a school resource officer to patrol the path.
Nothing about the relationship between Alan and Dave suggested that this incident could have been foreseen. There was no known animosity between the two students — and in fact, they were good friends. The school acted appropriately and in a timely manner when Alan reported to the nurse and the nurse immediately called the rescue squad. In addition, Dave was suspended from school for 3 days in accordance with the student code of conduct.
The Education Expert:
As an expert in education administration, supervision, and safety, I provide an understanding of how schools work and should operate. Based on my education, training, and professional experience, I can render an opinion as to whether a school met the professional standard of care in a certain situation. Regardless of whether I am engaged by an attorney for the plaintiff or the defendant, I provide an unbiased assessment of whether a school acted appropriately and within the professional standard of care. If you are working on a case involving injury to a child in a school or child care facility feel free to contact me at 609.397.8989 or at email@example.com to discuss the issues of the matter and to determine if my expertise would help bring the case to resolution.