November 21, 2017

School Safety Expert on Student Injury Liability and Negligence

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    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.

    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.

    School Liability

    Understanding School & Agency Liability Involving Child Injuries

    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.



    [1] National SAFE KIDS Campaign. School Injury Fact Sheet. Washington: NSKC, 2004.

    [2] Ibid.

    [3] Zirkel, P.A. and Clark, J.H. “School Negligence Case Law Trends.” S.Ill Univ Law J. 2008:32; 345-363.

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      Comments

      1. Miss Kim Alston says:

        My son had a accident at school on 4th April 2014 at school he fell and broke his left wrist /arm ,while he was in medical office no one out of three first aiders asked if he needs his inhalers has he’s asthmatic and all inhalers are kept in school so no excuse,also no ambulance was called . I don’t drive which I did tell the school head teacher and teacher s I think I was expected to get I a bus with my son with all his bags and coat and a broken arm ,when we got to hospital my son badly broken 2 bones in his arm /wrist he had first operation the next day to put wires in we were kept in a few days then on the 7th April we went to the fracture clinic to have X-rays to be told to come back next day my son had to have a second operation and have a plate put in his arm,he’s had that done .Not happy has it says I the school s policy if a child has a serious accident then the emergency sevice is to be called ,if they were my son would have been given some sort of pain killer and a nebuliser for his asthma . The school is Firs Farm Primary .

      2. To days ago …i was wating for my son at the bus stop he just turn 5 he is on kindergarten. ..20 mins ppassed from the time the bus was supposed to be there but never showed up…..me thinking the bus was late also around 15 more parents on the same stop waiting. ..them we saw. A crowd of kids walking towards us…my heart went dead for a few mins my son was all the way back behind almost to blocks away crying and shaking he said the bus driver yelled at them to get offf even doe the childrens to them it was not there stop he did not listen to them ..he lest the about 2 light up about a 20 min walk from their bus-stop,…,my son cross a principal street and 2 others following other kids he was so scared. …how can my son have been left at the wrong stop even doe he said it wasnot his stop??? A hit could have hit him!! Or stolen or worse thank god he is okk …but what if????? …..,,the school said they are sorry and investigating the case thats all they say but no is not enough actions have to be taken…what can i do???? Do i have a case so it would never happen again..thank you!!

        • Hello there,

          We recommend that you follow-up with the school principal and if there is no action and this happens again, you should notify the Superintendent and the Board of Education. Thank you for your comment and we hope this helps!
          Best regards,
          Education Management Consulting Team

      3. While in the locker room at school my son was hit from behind by a student. He was dazed but looked to see who hit him. Lost his balance and his head hit the concrete and caused concussion/cracked skull. He was knocked unconscious. While unconscious and bleeding this boy the jumped on him and brutally beat him. His eye and face was black. His jaw was swollen. His lip was swollen he was even beaten in the head around the crack which was bleeding. The school suspended both boys three days and have tried to hide the truth. They in so many words told me that my son deserved it. They would never discuss beating while unconscious. It is football season. I think that is why. My son will not return. They did not call 911 and no matter how hard I tried to defend my son brutal a
        ttack they woukd not discuss it nor drop the suspension which was to sidetrack me to cover up no adult supervision. Since they treated my son so badly he will not return to the school. His life has been turned upside down and they will not apologize. They will not speak of the truth. It was a horrific scene. A friend of my sons came over and told me that the boy that hit my son and my son was laughing. That my son was hit from behind lost his balance and when his head hit the floor he thought that he was dead. He said he then saw the boy beat him up with his eyes were shut. He said that he had to look at my sons blood on his shoes all day. He said that even though the coaches were outside the door he was scared. No one got help. My son had staples put In his head afterwards. And remained bruised still after 8 days. He said that he will not go back to school because he knows right from wrong and said that they did nothing but try to get him to say stuff when he was bleeding and did not treat him right. His last year with his brother is a senior will not happen and his baseball career with the school is gone because he will not return. Both are 14 ninth grade. Why is the school trying so hard to cover this up?

        • You should check the school’s anti-bullying policy and follow it to make a formal complaint. Once it is placed in the format of the school policy the school has an obligation to appropriately investigate and take action, if they determine that the behavior of the other students was, in fact harassment, intimidation or bullying. To say that it might have been “horsing around” is not an appropriate response. “Horsing around” can cause injury and there is a fine line between this and acting to intentionally harm another. The school has a student code of conduct that should cover discipline of students for “horsing around” and other inappropriate behavior. However, if left in this context, the school can determine that the behavior doesn’t warrant discipline and you may not be able to do much to change their mind. You also have the option of reporting the behavior to the police who will consider it as possible assault and battery. If they do conclude that it was, then criminal charges might follow. We hope this helps. Best regards, Education Management Consulting Team.

        • What happened to your son is a crime and should have been reported to the police. The other student assaulted him, and it sounds like your son could have died. For the safety of others, please report this.
          I would also consult a lawyer to take action against the school district for negligence. Why you are waiting for the school district to admit they were wrong makes no sense to me. They have to protect themselves from liability, and it’s your job to find them liable. That’s just the way it is. Good luck and I hope your son is feeling better.

      4. Superintendent, school resource officer or principal will not discuss this. They will only say things like this happen when kids are in the locker room hoarseplaying. Anything to blame my child. Which three kids said he did not touch the
        other boy.They act like this is nothing yet my sons life he knew is over. I am having panic attacks because I scared that if this can happen there is no justice in the school system if it the people who are suppose to care dont punish the child who did wrong.

      5. Also the school after acted like they were in a war with ne when all I wanted was an apology and for that other boy to be expelled. The reason he stopped beating my son was because his hand broke.

      6. Araceli Quiroz says:

        My son broke his left leg at school by a soccer post. He says that a kid got stuck in the net of the soccer post and then the kid got free but the soccer post fell down and the soccer post fell on my son’s ankle. The school nurse took my son to her office but she didn’t call the ambulance. His left leg look really bad and had lots of pain. The principal says to my husband that accident had never happen, I think she’s right how a soccer post fall is not suppoce that has to be secure,what about if the soccer post fall in his back or head or if more kids were affects.please can you respond,what can we do?

        • Thank you for your comment. You should seek help of an attorney. Once you have an attorney you can have him contact me to assist with your case. Best regards, Education Management Consulting, LLC Team.

      7. Early Februray I was doing a school activity in debate. A metal blade was sticking up from the floor, which the teacher put in mutliple request to get fixed, sliced the side of my foot and when I had to go to the front office and get it cleaned up thats when they sent people to go in the class and fix it. ( Probably to hide the evidence) is this a possible negligence case?

        • Jenny,

          Thank you for your comment. If your injury had been significant causing permanent and significant loss, the Shool’s failure to respond and correct the problem could have been considered negligent.

      8. Hello my son was at school on 12 15 2015he was at p.e. n on the field n they were playing n his foot got stuck in a golfer hole n now he has a broken ankle n they let him walk home like that n I was not notified about his injury when it happened at school n now what do I do please help me n him

        • Thank you for your comment. I suggest that you seek advice from a personal injury attorney, and he will advise whether using an education expert witness would be needed. I hope your son is OK. Best regards, Education Management Consulting, LLC Team

        • Thank you for your comment. You should seek help of an attorney to evaluate if there is anything that you can do. I hope your son is doing better now. Best regards, EDMGT Team.