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Negligence of teachers, coaches, camp counselors, bus drivers and others resulting in injury to a child is ever present the news. Negligence that results in sexual abuse, death, injury from faulty equipment, and sports accidents all present opportunities for large settlements or jury verdicts.

Plaintiff and defendant attorneys can follow a few recommended steps to determine the merit of filing a complaint and the strength of a defense.  In this article, school safety expert presents a systematic process  to guide attorneys when assessing student injury liability as the result of negligent employee behavior in schools and agencies.

Professional Standard of Care

Schools and other agencies that supervise children are held to a high standard of to protect the health, safety and well-being of children. A reasonable school or agency administrator or teacher/supervisor standard is applied when assessing school and agency negligence. This standard compares how another person of the same education, training and experience would respond in the same circumstance. This goes beyond the typical “reasonable person” standard and requires an assessment based upon the professional standard of care in the field of child supervision. When a child is injured, dies, is assaulted, or sexually abused often the outcome is a lawsuit claiming negligence on the part of the staff member. The court might find the school or agency guilty of a tort if the employee breached a professional duty which can be demonstrated as a proximate cause of the injury. If, on the other hand, the school or agency, through its employee, acted reasonably under the circumstances and within the professional standard of care, the defense is likely to prevail.

School Related Injuries

Because nearly 80 million children in the United States and Canada spend a great deal of their waking hours in school the potential scope of liability for negligence resulting in injury is broad. Public perception, however, tends to distort both the extent of school liability and the nature of injuries that children sustain while at school or when engaged in school-based activities.

Public attention on student injuries often focuses on school violence because that is what the media report. However, the vast majority of injuries to children at school are accidental and minor. Studies indicate that school-aged children are nine times more likely to sustain an unintentional injury than to be the victim of an intentional injury while at school.

Children in the United States under the age of 15 sustain more than 14 million unintentional injuries each year. It is estimated that 10 to 25 percent of these injuries occur in and around schools. In all, 1 in 14 students suffers a medically attended or temporarily disabling injury at school. [1]

In elementary schools playgrounds are associated with the preponderance of injuries. In secondary schools, athletics, including both physical education classes and organized sports, account for the majority of injuries among students. [2]

Extent of School Liability

Zirkel and Clark (2008) analyzed the trends in the frequency and outcomes of published decisions of student-initiated negligence claims in K–12 public schools in the United States. In each of these cases, schools and/or personnel were named as defendants. The researchers analyzed a representative sample of 212 published decisions involving personal injuries to students during a 15-year period from 1990 to 2005.

The sample included only student claims of simple negligence and excluded actions that alleged gross negligence, intentional torts, and educational malpractice. The sources of the data were the Sports and Torts sections of the Education Law Yearbook (ELA 1991–2006). The authors selected every fourth case within these boundaries to develop their sample.

In almost two thirds of the cases in this sample, the school successfully defended itself conclusively. The plaintiff won conclusively in less than one tenth of them.

The 212 decisions ranged across 40 states, with the largest number of total decisions in New York (n=66). On a per-capita basis, New York again led the nation, with 23 decisions per 1 million students. Among the 24 decisions (11%) in which student plaintiffs won conclusively or otherwise were awarded damages, Louisiana recorded the most (n=9), while New York (n=3) was the only other jurisdiction with more than one decision in the student’s favor. Louisiana, therefore, had the highest rate of decisions against schools, with students winning damages in 9 of the 14 cases during the study period (64%).

Among the various bases for decisions in this study, government and official immunity was the most prominent factor (46 percent) in school-favorable outcomes. The plaintiff’s failure to prove breach of duty, one of the elements of negligence to be discussed below, was the key element in 41 percent of cases decided in favor of school districts.

Secondary schools accounted for a notably higher frequency of published negligence decisions, a greater than 2-to-1 ratio. The authors attributed this to several factors that typically distinguish high schools from elementary schools: the greater availability of risky specialized activities; a larger proportion of students who are prone to violence; and generally larger student bodies. Primary schools accounted for a significantly higher proportion of conclusive decisions in the plaintiff-students’ favor (16% vs. 7% for secondary school students). In large part, the authors note, this is likely because younger students are considered more vulnerable, which places a higher duty of care on the school and contributes to a lower incidence of contributory negligence.

Among cases either decided conclusively in favor of student plaintiffs or where students were awarded damages, the most frequently named negligent individuals were coaches (n=5). Teachers were the source of the negligence in only two decisions, and in both cases, the teachers were not found personally liable. Other decisions were attributable to transit-related activity (n=12) — defined as the student riding on a school bus, walking to or from a bus, or walking between home and school; negligence in maintaining the premises (n=3); supervisory failure to prevent a student-teacher sexual relationship (n=1); and student bullying (n=1).

The key findings of this analysis, that the frequency of published decisions remained stable and that schools won the large majority of cases, are contrary to the general perception that school negligence is a major and increasing source of liability for schools. In fact, it is neither. This is a perception that is fueled by a number of factors, such as campaigns by political lobbying organizations and the liability insurance industry. It is also fed by the news media, which report on a handful of high-profile cases showcasing emotionally charged people. In truth, most cases that are similar to those reported by the media never make it as far as a courtroom. It should be noted, however, that in the small sample cases in which students won conclusively or received partial damages, the average known award was significant — $430,000.[3]

These findings illustrate the importance to attorneys of understanding what juries look for when determining a school or agency liability for the injury of a child. Let’s review the elements of tort law as it applies to school liability.

Elements of Tort Law and School Liability

Tort law provides a framework for determining school and agency liability.

Tort claims in the context of schools and agencies are based on the premise that an employee is liable for the consequences of his or her conduct if it results in injury to a child. The majority of child injury lawsuits involve claims of negligence. Tort claims are governed by state and provincial laws, but as with any negligence claim, each of the following elements must be assessed by both plaintiff and defendant attorneys: duty to protect, failure to exercise a reasonable standard of care, proximate cause, and actual injury.

Plaintiff and defendant attorneys should consider the following questions when assessing a school or agency liability for injury:

• Did the school or agency have a duty to protect the child in the particular situation?
• What was the reasonable standard of care under the circumstances, and did the school or agency apply that standard?
• If there was a breach of the standard, was it a significant factor in causing the injury?
• Did the party contribute to the injury through his or her own negligence?
• Where there any intervening variables that may have interrupted the proximate cause or causation of injury.
• Was there substantiated injury?

Duty to Protect

School and program administrators and child supervisors have a responsibility to anticipate potential and foreseeable dangers and take reasonable precautions to protect children from those dangers.

With respect to activities that take place during the school or agency program, the duty to protect is usually easy to prove. In addition to the school day and on school grounds, courts have held that this duty may apply beyond school hours and off school grounds. For instance, the school may have a duty to protect children on a school-owned or a contracted school bus. A teacher or aide may have a duty to protect a student from wandering off during a class trip. A teacher may have a duty to protect a student whom he drives home from football practice on Saturday morning.

Failure to Exercise a Reasonable Standard of Care

If a school or agency employee fails to take reasonable steps to protect a child from injury, the employee can be found negligent. Courts will weigh the actions of an employee against how a reasonable employee would have acted in a similar situation.

For instance, would a reasonable teacher hand a pair of a sharp scissors to a third-grader and ask her to scrape hardened clay from a wall while standing on a ladder? Would a reasonable custodian fail to repair a latch on the cafeteria wall that holds a 300 pound table in place? What precautions or level of supervision should the school or agency consider to protect children from injury in these situations?

The degree of care exercised by a reasonable administrator, teacher, bus driver, or other employee of a school or agency is determined by considering:

• The employee’s training and experience;
• The age and capacity of the child;
• The type of activity and, if necessary, was the child trained and warned of dangers;
• Whether the supervising employee was present; and,
• The environment in which the injury occurred.

An elementary school student and a child in a pre-school age daycare center will typically require more supervision than a high school student when playing on the playground or on a class trip. And students in a physical education class will require closer supervision than those who are reading quietly in the library.

A child’s disability, if one is present, presents an additional layer to the definition of reasonable standard of care that must be considered. A child with a known behavioral disability, for instance, may require closer supervision on the playground. Courts have held that several factors, such as a student’s disability and unique needs, are relevant in determining a reasonable level of supervision in certain situations.

Proximate Cause

Did the school or agency employee fail to exercise a reasonable standard of care, and if so, did it place the child in harm’s way and result in injury?

The ability to prove this element, called, proximate cause in the United States (or causation in Canada and remoteness in the United Kingdom), depends on establishing that a child’s injury could have been foreseen and prevented. If the injury could have been anticipated and prevented by an employee’s exercise of a reasonable standard of care, legal causation may exist.

The question to ask is whether the injury was a natural and probable result of the wrongful act and should have been foreseen and could have been prevented in light of the circumstances. A wrongful act could be described as failure to supervise, for instance, or could involve a deliberate action such as sending a student off campus for a non-educational reason, however well intentioned, that leads to an injury. Let’s look at an example of a deliberate action. A woodshop teacher replaced a broken bolt for a protective device on a table saw with a bolt he finds in a desk drawer. The teacher knew that the bolt didn’t meet the manufacturer’s specifications but decided to use it anyway. Three days later, the device came loose and a student nearly severed three fingers while using the saw. A jury could determine that the teacher’s decision to use the nonstandard bolt was a deliberate action and proximate cause of the student’s injury.

A negligence claim will not be successful if the injury could not have been prevented, even when reasonable care is exercised. The inevitability of an accident nullifies proximate cause. This may hinge in part on whether the child contributed to his or her own injury. Let’s return to the woodshop and the table saw. Another teacher provided clear instruction on how to use the saw, tested each student with a paper and pencil test and individually observed and instructed each student at the saw. Students were provided with the safety rules and told of the danger of using the saw in the wrong way. The saw was regularly inspected and taken out of use if in need of repair. A student disregarded the instructions and warnings, used the saw inappropriately and was injured. Is the school liable for the student’s injury? Did the student contribute to his injury?

Contributory Negligence in School Liability Cases

If it can be revealed that a child contributed to the injury, the school or agency may invoke contributory negligence, a common defense against liability. If the court holds that contributory negligence was a factor in the child’s injury, the school or agency may be held only partially liable or not liable at all, depending on the jurisdiction. It is difficult to prove contributory negligence against children under the age of seven because tort laws generally hold that young children are incapable of contributory to their own negligence at that age. If, for instance, a pothole in the playground blacktop is marked off with orange cones, contributory negligence may not be a factor if a young child walks through the cones, trips in the pothole, and breaks an ankle. Even with adequate barriers and warnings on the playground, a young child may not be expected to understand the danger and protect his own safety and a child may be able to collect damages even if she contributed to her own injury.

Actual Injury

The presence of an actual injury is the final element that must be proven in a school or agency negligence case. The injury does not have to be physical — it can be emotional — but it must be documented and sustainable. Without a provable injury, damage suits will not be successful — even when negligence is involved.

SUMMARY

The extent of claims against schools for negligence has remained fairly constant for more than two decades. Overwhelmingly, published decisions in simple negligence cases have favored school district defendants. A large proportion of these decisions have hinged on government and official immunity and on failure of plaintiffs to prove breach of duty.

Courts have examined the key elements of negligence in the context of schools and agencies responsible for the health, safety and wellbeing of children and the reasonable professional standard of care. It is important for attorneys who seek to bring a case against a school or agency, and attorneys who defend schools and agencies to have a system to determine the extent of a school or agency liability for the injury of a child.