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Unquestionably, schools have a responsibility to protect children from harm. The same goes for agencies such as day care centers, summer camps, and after-school programs. Schools and agencies, however, are not the ultimate protectors; that role falls to employees, who must act on behalf of the school in a way that is reasonably calculated to maintain children’s health, safety, and well-being. The key word here is reasonable — and in the totality of a situation in which a child was injured or died, an analysis and assessment of what was reasonable can be challenging but it is the key to assesing school liability.

The distinction between a school or agency’s duty to protect and who is the ultimate protector from harm in a given situation is important, because it provides an avenue for determining liability. This is the starting point for analyzing a case involving student injury or death and assessing what kind of behavior would be expected to keep children safe. Behavior that is deemed reasonable under the circumstances leads us to the question of whether those in charge acted appropriately and within a professional standard of care that is calculated to protect children from harm.

Determining either the merit of filing a lawsuit or the strength of a defense boils down to two key questions. Attorneys need to know “What would a reasonable administrator, or other employee, do in the same or similar circumstance?” and “If this person acted differently, would the injury or death have occurred?”

School Safety and Security: Tips for Assessing Liability in School Violence Lawsuits

Student Safety: What should be done?

Ensuring children’s safety requires that those in charge be both proactive and reactive in a meaningful way. At a general level, a reasonable school or program administrator would conduct a safety survey of the facility, the equipment, and the community; assess the supervisory requirements of the children based on their age, number of children, and any unique characteristics; and develop policies and specific procedures for staff implementation. Specific circumstances may compel a reasonable administrator to take additional measures or instruct staff to be vigilant and prepared to disarm a situation, even if no statute or regulation requiring specific action exists.

As an attorney, place yourself in the classroom where a child slipped and fell. Or in the daycare center where the teacher asked a child to carry hot soup across the room. Or at an agency-sponsored trip where a child ran into the street. Then ask yourself: What should the administration and staff have done to protect children in these circumstances? Were reasonable and appropriate steps taken, and if a child was hurt, would the injury have occurred even with these precautions? Let’s consider these questions in the context of two real cases.

Wrongful Death Lawsuits against Schools and Agencies

Applying the Reasonable Standard to School Accidents

The first case involves a 300-pound cafeteria table that fell on a second-grade student. This was an 18-foot table that folded in the middle and stood upright, on wheels, when folded. When the folded table was put away, it was rolled to a wall, where it would be securely fastened by a manufacturer-supplied device. Recognizing the need to protect students from a falling table, the school developed a procedure by which the custodian, immediately after lunch, would clean the tables, fold them, move them to the wall, and secure them to the wall. This was in his job description. The latches along the wall were functional, but the custodian failed to latch one table to the wall. When a student walked through the cafeteria, he leaned against the table — causing it to topple onto his head, killing him.

Any reasonable school or agency administrator would understand that if a 300-pound table was not securely fastened to the wall, it might tip and fall on a student. The school recognized this danger, developed a careful procedure, and placed it in the custodian’s job description. The manufacturer warned that the tables must be latched to the wall with the supplied mechanism to prevent accidental tipping and injury or death. The manufacturer provided this mechanism and the school properly installed it and required the custodian to use it to secure the tables. The school, through its administration, was also responsible for ensuring that its standard was followed.

In this case, the test for actual causation is whether the plaintiff could establish that this student’s death would not have occurred without the negligent conduct of the school through its employee. Viewing this through the eyes of a reasonable school administrator provides the answer. A reasonable administrator would have developed a review-and-supervision system whereby she would regularly observe to ensure that the school’s own standard was being met — that is, that the custodian latched tables to the wall as required. If the administrator saw that the custodian failed to fasten a table to the wall, it would be her responsibility to correct the custodian’s behavior by bringing this deficiency to his attention. The administrator failed to ensure that the proper procedure was being followed and that contributed to the custodian’s failure.  In this case, it was determined that if the table was securely fastened to the wall — as per the professional standard of care — the student would not have been killed.

The second case involved a television that sat atop a movable cart. Teachers used the cart regularly to move the TV from one room to another and then into a hallway storage closet at the end of the day. In the morning, the teacher wheeled the cart with the television to her classroom and set it up for a small group of children to watch. Later, she was busy with another group when she instructed two third graders to take the loaded cart down the hall and put it in the closet. Along the way, the children began to play on the cart — one standing on the bottom shelf, holding onto the sides, while the other pushed. When the child pushing the cart let go of it, the cart tipped in the direction of the student hanging off the front. The 55-pound TV slipped off the cart and fell on the child’s head, causing permanent brain injury.

As with the case involving the table, the test for actual causation in this instance is whether the plaintiff could establish that the child’s injury would not have occurred if not for the administrator’s and the teacher’s negligent conduct. A reasonable administrator would have notified teachers that children would not be allowed to push carts with TVs on top of them. In fact, in this case, the cart had a sticker on it stating “only to be moved by an adult.” Moreover, this particular cart earned the distinction as a dangerous piece of equipment by the U.S. Consumer Product Safety Commission (CPSC) because of numerous injuries resulting from its design. Although the manufacturer was notified of the CPSC warning and provided this information to those who purchased the cart, the school either did not receive the warning or did not consider it when assessing the overall safety of the facility and equipment. The cart was not taken out of service and teachers were not warned to prohibit students from pushing it.

Elements of Tort Law and School Liability

Summary

Schools and agencies have a responsibility to care for and protect children from harm. They must act in a way that is reasonably calculated to maintain the health, safety, and well-being of children. An analysis and assessment of what was reasonable in the totality of the circumstances surrounding the death or injury of a child can be challenging. Determining what was reasonable under the circumstances addresses the question of whether appropriate actions within the professional standard of care were taken to protect the child from harm.

Applying the reasonable professional standard within the context of the situation provides a focus. This is best done by someone with a thorough understanding of how schools and agencies work and how a reasonable and prudent administrator would act in a specific circumstance. Attorneys who don’t have a clear picture of how systems work — or should work — in these settings often misjudge the merit of filing a lawsuit or the strength of a defense against one in cases involving a student injury or death. The two examples in this article illustrate the complex analysis required for a full understanding of a situation and its implications for determining liability.

Remember the two key questions: “What would a reasonable administrator or other employee do in the same or similar circumstance?” and “If this person acted differently, as a reasonable administrator, would the injury or death have occurred?” Attorneys who have the answers to these questions may be able to improve their assessment of a case.