April 23, 2017

School District Liability: Duty of Care Owed to Students, Visitors, Volunteers, Trespassers and Local Agencies

Whenever children are involved in events on school premises, there is always the possibility of school district liability for incidents that happen on school grounds or at school-sponsored events. This foreseeability gives rise to a duty to take reasonable steps to prevent a child from being harmed. Public school districts may find themselves liable for injury — not only for those suffered by their own students, but also for those incurred by children who are invited onto school grounds, who attend separate programs on school grounds, and even those who are considered trespassers.

School-sponsored events, such as an after-school club, a school dance, or a daycare program run by the school board, are clearly extensions of the school. With these types of programs, the school’s safety and supervisory policies apply. If a person is hurt or is sexually assaulted during a school-sponsored or operated event, it is generally clear that school district liability will attach if there is a finding of negligence.

A school district’s liability for injuries to children on its grounds is far less clear, however, when an outside organization is involved or when an injured party was not authorized to be on campus. Schools sometimes rent or give space to organizations like the Boy Scouts, a community basketball organization, or a private dance school to provide services to the general public, students at the school, or both. Very often, outside organizations cooperate with the school to provide before- and after-school services for the school’s own students, but these programs are not directly operated by the school. Typically, schools have policies that spell out an approval process for the use of their space. However, based on some of the cases for which we have been engaged, these policies do not always go far enough — thus leaving school districts open to liability if a child involved in an activity that is run by an outside organization is injured on school grounds.

 

School District Liability When an Outside Agency or Organization is Involved

For example, one of our cases involved a school that allowed a community athletic association to use its gym. The board of education approved the application and even noted that the organization had liability insurance. One of the volunteers with the athletic association led a participant, who was also a student at the school, to the restroom — where the volunteer sexually assaulted the student. When we reviewed the facts to render an opinion as to whether this school acted within the professional standard of care, it became evident that the athletic association never trained its volunteers in the prevention, detection, and reporting of suspected child abuse. It did not have a plan for supervising its volunteers, nor did it check their backgrounds before allowing them to have contact with the children in their program.

One of the questions that arose in this case was: Did the school have a responsibility to ensure that the other organization had policies in place to reasonably protect the school’s own students from harm?

School district liability and duty of the school to the plaintiff depends upon the relationship between the plaintiff and the school, the relationship between the plaintiff and the other organization, and the relationship between the school and the other organization. Often, these relationships are complicated, and it is necessary to determine which agency had responsibility for the plaintiff’s safety at the time of the incident.

Consider the following examples:

  • A school allows one of its teachers to use the music room after school to provide private lessons. The teacher systematically lures a student into an inappropriate relationship and is accused of sexually abusing him in the school.
  • A person on the school’s grounds when not authorized suffers an injury. Even though this person would be considered a trespasser, the school may be liable under certain circumstances.
  • The parent of an athlete from an opposing wrestling team falls from the bleachers in the high school gym. Which school — if either — had responsibility for his safety?

In any of these scenarios, the school may become a defendant in a lawsuit and argue that it had no responsibility for the safety of the plaintiff.

One of our cases involved an allegation that two students sexually abused a high school girl under the bleachers during a football game. All three students were at the football field to watch the game and were allowed to be there. The plaintiff student had an implied invitation to enter the premises (the football field), and she entered for the purpose of which the invitation was extended (to watch the game). In a situation like this — all parties at a school-sponsored event were authorized to be there — the plaintiff’s attorney would need to show that the school had a duty to the student to take affirmative action to protect her from an unreasonable risk of harm.

While the school is not a guarantor of the student’s safety, it must take an affirmative action in anticipation of foreseeable injury in order to minimize school district liability. The plaintiff must show that the school knew, or should have known, that the dark area under the bleachers amounted to a defective condition, that the risk to the student could be foreseen, and that because of the school’s negligence in not correcting this condition (not illuminating the area), a student could be assaulted in that location. The defendant’s attorney, on the other hand, must show that this area of the bleachers did not constitute a defective condition, that the information known by the school would not give rise to the foreseeability of the plaintiff being sexually assaulted in that location, and that intervening variables served as proximate cause of her injury. An education administration and supervision expert witness would determine whether the school maintained its property in a reasonably safe condition and whether it reasonably supervised its property during the game.

 

Questions That Help to Determine School District Liability and Duty

When attorneys engage our firm’s services to render an opinion as to whether the school bore responsibility in specific circumstances, we review the duty owed to the plaintiff and whether the school acted reasonably, appropriately, and within the professional standard of care. Often, this analysis begins with a determination of whether the plaintiff was authorized to be on the premises (for instance, a student attending class); was invited to be on the premises (for instance, a member of a visiting football team playing a game against the home team); was a licensee by virtue of an agreement with another entity (for instance, an enrollee in a dance school); or whether the person was trespassing. With each of these classifications, a different approach is applied to the analysis of which entity was responsible for protecting the plaintiff from harm and what that responsibility involved.

When developing an opinion in such cases, our expert witness will apply his education, training, and professional experience to answer several questions: Who was the responsible agency? What policies did the agency have in place to protect individuals from harm? Did the agency apply its policies? What training was provided to the staff that was responsible for supervising children, and was the training reasonable? Did the agency meet other required standards, such as those required by licensing agencies? Did the agency vet and supervise individuals who were responsible for the safety of children?
In examining these questions, it can be determined whether the school had a duty to the plaintiff and whether that duty was breached resulting in school district liability.

Post-Election Hostile School Environment: Protecting Students from Bullying and Harassment

post election school climate

Schools, including K-12 schools, colleges, and universities, have a responsibility to protect their students from harm. Harm includes the inability to benefit fully from education as a result of being in a hostile school environment. The politically motivated rhetoric and actions seen in schools during and after the presidential campaign can create a hostile school environment for which schools can be held responsible.

Many of the attorneys who seek Education Management Consulting, LLC’s expert witness services are involved in litigation over the actions of students toward classmates. In these cases, attorneys want to know whether the school administration responded appropriately and reasonably under the circumstances. Each state has a law that requires schools’ governing bodies to develop and implement policies ensuring that students’ educational environment is free from hostility and is conducive to learning. When campaign rhetoric and the election results spark hateful harassment, intimidation, or bullying, resulting in a hostile school environment, schools must follow state law and respond according to the policies put forth by boards of education, colleges, or universities.

When a group of eighth-grade students intimidate a Latino student by saying, “You have to go back to Mexico now,” and, “You won’t be able to come back to school because there will be a wall to keep you out of our country,” the school needs to address this behavior. The student in this scenario refused to go to school after this occurred on three separate occasions. It can be argued that if the school knew or should have known about the harassment and failed to intervene to end the behavior, resulting in a hostile school environment, there may be an argument that the school breached the professional standard of care and may be liable for damages.

According to a survey by the Southern Poverty Law Center, there were almost 900 incidents of “hateful harassment” nationwide in the 10 days following the presidential election. Schools were the most common venue for these incidents, a result the center called “not surprising, given how prevalent bullying is in our nation’s schools.” The findings correlate with those of a previous study conducted by the center, which reported that the campaign’s scorching words had a “profoundly negative impact” on students. In the earlier study, more than half of teachers said they had seen an increase in harassment, intimidation, and bullying of students whose race, religion, or nationality was the target of political rhetoric resulting in a hostile school environment for all students.

This kind of behavior, when it occurs in schools, colleges, and universities, constitutes harassment (and, under certain policies, intimidation and bullying). Yet 4 out of 10 teachers who responded to the Southern Poverty Law Center’s post-election survey didn’t think their school had a real plan of action for dealing with bias and hate incidents. Some teachers interviewed by CNN said their schools could benefit from better resources and training for teachers, administrators, and staff.

No federal law directly addresses bullying in schools, however bullying in certain instances can overlap with discriminatory harassment based on protected classes. When intimidating, harassing and bullying behavior occurs, there may be a breach of federal civil rights or antidiscrimination laws or state laws against discrimination. No matter what label is used (e.g., harassment, intimidation or bullying), a school that fails to respond appropriately to harassment of students based on race, color, national origin, sex, age, disability, or religion may be violating one or more civil rights laws enforced by the Department of Education and the Department of Justice.

Determining the Professional Standard of Care in Cases Involving Harassment, Intimidation and Bullying

When Education Management Consulting, LLC reviews a case involving a hostile school environment and student harassment, our staff, after determining the issues surrounding a complaint, identifies the standard of professional care. The standard is identified in federal and state statutes, regulations, and advisories to administrators, as well as the policies of the board of education. Next, we review all testimony, reports, and other available information to identify the incident(s) that may have occurred, to whom they were reported, how the school responded, and in the opinion of our education expert witness, whether the school acted appropriately and reasonably and within the professional standard of care under the circumstance. The school may not have been informed of the harassing behavior, and in that case, would not have an obligation to supervise students any differently. If the administration, however, has knowledge of the harassing behavior, the school, through its administration and/or other employees, is responsible for supervising students differently to end the harmful behavior.

A plaintiff’s attorney will need to show that the school had policies to address harassment, that the administration had knowledge or should have had knowledge that harassment occurred, and that ignoring that information caused the harassment to continue or worsen. Additionally, the plaintiff’s attorney will need to show that the harassment was responsible for the creation of a hostile school environment to the extent that the student failed to benefit fully from his or her education.

A defendant’s attorney will need to show that the school had policies to address harassment, that staff was adequately informed and trained regarding the policies, that there was no knowledge of the alleged harassment nor should the school have known of it, and that the plaintiff did not experience a hostile learning environment and continued to benefit from their education.

School Duty Regarding Harassment, Intimidation, Bullying and School Climate

Anyone can report harassing conduct to a school official. When a school receives a complaint, it must take certain steps to investigate and resolve the situation while implementing school policies and procedures. These include:

  • Taking immediate and appropriate action to investigate or otherwise determine what happened
  • Ensuring that an inquiry is prompt, thorough, and impartial
  • Interviewing the targeted students, offending students, and witnesses, and maintaining documentation of the investigation
  • Communicating with the targeted students regarding the steps taken to end harassment
  • Checking with the targeted students to ensure that the harassment has ceased
  • Reporting any criminal conduct to the authorities
  • Implementing the school’s code of conduct and discipline for the offenders

When an investigation reveals that harassment has occurred, a school should take steps reasonably calculated to end the harassment, eliminate any hostile school environment, prevent harassment from recurring, and prevent retaliation against the targeted student(s) or complainant(s). In addition, schools should be proactive and ensure that students, parents, staff, and the community are trained and receive information on the prevention of harassment, intimidation and bullying motivated by political rhetoric and based on race, national origin, color, sex, age, disability, and religion.

Successfully Resolving Harassment Complaints to Avoid a Hostile School Environment

Appropriate responses will depend on the facts of each case. Following a complaint or observation of inappropriate harassing or intimidating behavior, school officials must conduct an “environmental scan” to determine what occurred, who was involved in what occurred, when and where it occurred, and what could have been done differently to avoid the behavior. Once an investigation is completed, the school should continue to monitor the situation, respond to harassment, and take reasonable steps when crafting remedies in order to prevent a hostile school environment. The remedies should include responses intended to minimize burdens on students who were targets of the harassment. Possible responses include:

  • Develop, revise, and publicize the school’s policy prohibiting harassment and discrimination; Grievance procedures for students to file harassment complaints; Contact information for the Title IX and Title VI coordinators
  • Implement training for staff and administration on identifying and addressing harassment
  • Implement training for students on identifying and reporting harassment
  • Provide monitors or additional adult supervision in areas where harassment occurs
  • Determine consequences and services, such as counseling, for harassers, including whether or not discipline is appropriate
  • Limit interactions between harassers and their targets
  • Provide the harassed student an additional opportunity to obtain an educational benefit that was denied (e.g., retaking a test or class)
  • Provide services to a student who was denied a benefit (e.g., academic support services, counseling)

Schools Should Be Diligent, Watchful, and Responsive to Avoid a Hostile School Environment

What motivates students or gives them the impression that they can inappropriately express their bias, anger, or feelings about a classmate can come from various sources, including what is heard through the media, what is heard in the home, and political attitudes and expressions from candidates. Freedom of expression is cherished, but where it enters the light of harassing, intimidating, or bullying behavior that insults or demeans any student or group of students or severely or pervasively causes physical or emotional harm to the student, the school has a responsibility to intervene to end the behavior. If one student tells another student of Middle Eastern national origin, “Get out of this country. You are going to be kicked out. We don’t want you here,” this likely rises to the level of prohibited harassment, intimidation, or bullying. When a school administrator, teacher, or staff member observes such behavior or receives a report of such behavior, the school must immediately apply its policy, conduct an investigation, effectively discipline the offending student(s) according to the student code of conduct, provide support services to the victim(s), and implement other programs and services to inform students of school policy and the consequences of violating it. In the wake of the election, every school should assess the climate within its own walls and develop approaches that provide learning experiences for the students and not a forum for hate.

If a school district or board of education has an appropriate policy; has effectively communicated the policy to its staff and students; provided additional staff and student training programs that cover divergent political views, tolerance, and acceptance; and, acts immediately upon a report of harassment, intimidation, and bullying related to the fallout from the election, the school will have a better chance of defending itself after an incident occurs. On the other hand, if a student brings a lawsuit against the school and can demonstrate that he or she was intimidated because of national origin and that the school was lax in the implementation of its policy, the plaintiff’s attorney will likely have a better chance to prevail.

It is likely that the post-election hostile school environment and climate will continue to embolden some students to harass and intimidate classmates based on their ethnicity, gender identity, sexual orientation, religion, or national origin. No doubt, many schools will be more active in responding to incidents. Before such behavior enters the realm of litigation, schools may be able to respond in a way that not only will protect students from the harm of a hostile school environment, but educates students about acceptance, tolerance, and community.

In Loco Parentis: Duty of Educators and Professionals in Residential Programs for Children

Educator DutySome of our most vulnerable children are relegated to a life away from parents, family, and their school to live where other adults take the place of their parents and are responsible for their custody or care – legally defined as in loco parentis. This occurs when children are placed in residential centers for the treatment of mental illness, schools for the deaf and blind, or similar facilities for children who require extensive medical care and management.

In my September 2015 article, I discussed parental and professional standards of care when considering supervision of children in residential placements. The reasonable and prudent parent uses judgment in making decisions about their children’s care. Parents usually make decisions carefully, weighing the benefits and potential risks to come to a sensible decision that is in the best interest of the child. When professionals care for children, they have a duty to meet the same standard, but they also have a higher duty to meet the standards of a reasonably prudent professional. Professionals such as teachers, program administrators, psychologists, counselors, doctors, and nurses have the legal responsibility to exercise the level of care, diligence, and skill prescribed in the code of practice of their profession, the legal requirements of the government, and in the policies of the residential program.

When a child has a condition or disability that is not common and when the child’s disability cannot adequately be addressed in the local school, community, or at home, placement at a specialized facility to meet these needs may be required. These placements provide educational, medical, and residential programs. Staff who supervise children where they live act in place of parents. These adults are expected to protect the child from dangers and prevent the child from engaging in harmful or irresponsible behaviors. This responsibility fulfills the reasonably prudent parent standard of care. In addition, the care of these children extends beyond the simple need to house them, and meeting the professional duty extends in tandem with their needs and disabilities.

 

Duty Under In Loco Parentis

In a residential facility, in loco parentis refers to how a supervisor or caregiver who directly oversees the actions of a child deals with the child’s conduct. This is the same as when a parent sets boundaries for his or her child, then instructs, guides, or disciplines the child. In a residential setting, the person who is standing in place of the parent holds authority over the child, acting in loco parentis.  Elements of in loco parentis define the duty that educators and caregivers owe to their students.  This includes principles of negligence and the duty to anticipate foreseeable dangers and take reasonable steps to protect students from those dangers.

When an adult acting in loco parentis steps over the line with regard to the role of a reasonably prudent parent, the residential facility may be liable for the adult’s actions. As an example, a caregiver’s use of undue force that would fall under the definition of assault and battery may be cause for liability if the child is injured. If a child assaults and injures another child during a moment of inadequate supervision, this also may also be a cause for liability. The Ohio Supreme Court has stated that although a teacher may stand in loco parentis with regard to enforcement of authority, the teacher does not stand in loco parentis with regard to one’s negligent acts and thus is not accorded the same tort immunity given parents (Baird v. Hosmer, 46 Ohio St. 2d 273, 75 Ohio Ops. 2d 323, 347 N.E. 2d 553 (1976)). In the same way, while a person in charge of a child in a residence is considered acting in loco parentis, that person is not safe under tort immunity if he or she failed to act as a reasonably prudent parent.

 

Professional Standard of Care

A residential program becomes that child’s world. All his or her needs must be met, including shelter, food, medical care, counseling, and recreation, just as if the child was living at home and attending school. In this all-inclusive setting, there are people trained as professionals — teachers, counselors, psychologists, and supervisors — who have total responsibility for the health, safety, and well-being of the child. These programs must have adequate plans for meeting the needs of the children in their care, and these plans should be shared across disciplines and departments.

For example, if a student has demonstrated behavioral problems while on a school trip, that information should be provided to the adults who are in charge in the residence and are acting in loco parentis. This process is similar to a schoolteacher informing a parent at home about a child’s behavior. The intent is to work together with the parents in the child’s interest. When this system is nonexistent or breaks down in a residential setting, resulting in student injury, the program may be open to liability. If a teacher observes a student running away during a class trip but fails to share that information with those in charge of the residence, the agency might be liable if the child wanders off and is injured. The agency had knowledge of the student’s behavior, failed to report it to those in charge of the residence and, overall, failed to enact a cross-departmental plan to protect the child.

To protect children from harm and the agency from liability, it is important to conduct the required evaluations and assessments, have as much information about a student as possible, seek additional information when warranted, assess and evaluate behaviors and symptoms, share that information with key staff in residential, school, and health departments, and develop comprehensive plans that account for safety and supervision. All professionals involved, including residential staff, should pay attention to a child’s new behaviors, manifestations of challenges, and conditions that are part of their disability or diagnosis, and use that information as part of a coordinated approach for meeting the standard of care for the child in their custody.

For example, I was engaged as the education administration and supervision expert witness in a case involving a child who had been receiving extensive counseling through a residential program’s health department. His tendency toward violent behavior and information about triggers for such behavior were not shared with other adults in the program, nor was this information used to develop a safety plan. Treating professionals did not assess and evaluate the student’s key signs of mental health deterioration, despite many instances that should have caused them to provide additional care. Eventually, the student suffered a mental breakdown, broke into an administrative office, grabbed scissors, and escaped the building. Police who arrived on the scene shot the student when he did not respond to their demands to put the scissors down. Mentally, he was not aware of what was going on and did not understand the police’s instructions.

My review and analysis of this case led me to conclude that the program had sufficient information about the student’s emotional and behavioral issues but failed to address those manifesting behaviors, and on the day of the incident, staff was unable to communicate effectively with him to de-escalate the behaviors. Before being shot, the student was confronted by a teacher who did not have complete information about the student’s behavioral issues or how to deal with them. The teacher’s actions escalated the behavior, placed other students and school staff in harm’s way, and ended in student being shot. If the program had an overall safety plan for this student that included staff training in how to deal with him, it is less likely that he would have been shot. It was my opinion that the program, through its administration and other staff, breached the standard of professional care when it failed to address the student’s mental health issues, failing also to inform and train all staff about the student’s problems and how to protect the student and others from harm.

 

Training and Oversight are Essential to Avoid Residential Program Liability

Numerous case reviews by Education Management Consulting, LLC, have concluded that a residential facility or agency had access to policies and provincial, state, or federal rules, but those policies were not implemented nor was staff adequately trained to use them. In some of these cases, the result was that children were injured, sexually abused, or physically assaulted by other students. Prevention, detection, and reporting of child abuse, knowing how to administer appropriate restraints without injuring a child who acts out, and understanding the requirements for continuous supervision of children are just a few of the areas that require training and oversight. If an injured plaintiff can demonstrate that the facility had in-house policies or that government policies were available but it failed to train staff in those policies and supervise their work, then the program may not be able to avoid liability.

Frequently, when I review a case as an expert witness, I find that the facility had adequate policies, the supervision of children and staff-to-child ratios were good, and the discipline code and rules for children were well thought out and reasonable, but there was a breach in the system. In one such case, for example, a child in a residential school sexually assaulted another in the bathroom. On paper, the policies and supervision procedures looked good. The missing link was that staff responsible for supervising children had knowledge that the predator had done this before, yet made no attempt to provide additional supervision when this particular child was alone with another.

Policies are only as good as the training and monitoring of staff responsible for implementing them. In this case, the facility had knowledge of one resident’s sexually aggressive behavior, but failed to take any reasonable steps to prevent her from harming another child. They failed to provide her with any counseling or heightened supervision, and in fact one of her first offenses was not reported to outside authorities for investigation. In essence, she was allowed to continue her inappropriate behavior. If the facility provided her with appropriate follow-up counseling, reported the first incident to the authorities, and stepped up its supervision of her, it would have been, in my opinion, less likely that this incident would have occurred. 

The American Academy of Child and Adolescent Psychiatry provides guidelines for residential treatment programs in its 2010 publication, Principles of Care for Treatment of Children and Adolescents with Mental Illnesses in Residential Treatment Centers. The Academy offers an approach for professionals about the provision of services and some important training and educational standards, such as hiring staff with appropriate credentials and experience.  There are other similar publications, training programs and professionals available to assist residential care centers with training and keeping up with the standards in the field.

 

Summary

On December 3, 2014, the Chicago Tribune reported that thousands of children in residential treatment centers in Illinois are assaulted, sexually abused, and run away. The residential centers promise round-the-clock supervision and therapy to children who are wards of the state and who have histories of abuse and neglect, as well as to other disadvantaged youths with mental health and behavioral problems. The Tribune reported that patient-on-patient sexual assault is commonplace at some facilities, and vulnerable children are terrorized by older ones. Some are preyed on sexually by adults paid to care for them. In the three years ending with 2013, Illinois residential facilities reported 428 alleged cases of sexual assault or abuse of children in their care to the state Department of Children and Family Services. The state and program administrators said they are underfunded and overwhelmed by too many children, many of whom don’t belong at the facility. In a legal assessment of whether a program, its administration, or staff acted appropriately and reasonably in a specific circumstance, however, these are no excuses.

Adults in schools, camps, daycare centers, and residential programs have a duty to protect children from harm. But when children are placed away from home, out of sight of parents in residential programs, it isn’t unusual for them to be subjected to harm.  Unfortunately abuse and mistreatment typically comes to light after years of poor management, lack of training, lack of government oversight, and staff incompetency. In so many institutions and residential programs, children are often forgotten — out of the sight of the public and their parents. Some programs began in the 1800’s when social capabilities and awareness, along with frustration and lack of resources, forced them into existence. We are just realizing now that so much mistreatment and abuse has taken place but kept quiet and children were hurt.

Student Injury and Standard of Professional Care Analysis in Schools

student injuryRisk of personal injury to children is reduced when activities, facilities, equipment, personnel, and supervision are brought into compliance with “standards.” There are several sources of standards. Some standards are mandated by law through statutes. Additional standards are set forth by oversight authorities, such as the American Academy of Pediatrics, the American Camping Association, the National Federation of High School Athletic Associations, or the U.S. Consumer Product Safety Commission, to name a few. Other standards involve the customary professional practice of those conducting such activities. Ignorance of such standards is no excuse for failing to comply and schools and agencies with children have a duty to be proactive about implementing standards in order to prevent student injury.

As an education and child supervision expert, I begin my review and analysis of the issues of a case by identifying standards in the field — those mandated by law, or statutory standards, those set forth by oversight authorities as well as the customary professional practice of the school, summer camp or daycare — and then determine whether they met those standards. If my review and analysis demonstrates that standards were not met, then the next step is to consider whether a breach of one or more standards was a proximate cause of alleged student injury. Determining whether a risk of injury exists is, in part, assessed by ascertaining whether compliance with standards is met. For example, although there may not be standards mandated by law for camps that offer swimming as part of their programs, the American Camping Association, an oversight authority, specifies minimum requirements for a lifeguard. Meeting this standard requires a minimum level of training for the lifeguard and also certification. If the camp employs a lifeguard who does not meet these requirements, there is an inherent risk of student injury since the lifeguard was not trained to receive the certification.

Federal statutes, such as the Individuals with Disabilities Education Act (IDEA), require that schools provide a certain level of programs and services for children with disabilities so that children can benefit from their education. Regulations implemented for IDEA specify that schools must develop an Individualized Education Program (IEP) for a child with a disability and that the IEP be reasonably calculated for the child to benefit from his or her education. This, then, becomes a standard of care for comparing how the school met or failed to meet the needs of a particular child. If a child displays significant behavior issues, then the statute requires the school to conduct a behavior assessment and develop a behavior plan to be followed by school employees. Failure to develop an appropriate and reasonable behavior plan as part of an IEP for a child with behavioral problems and failure to train teachers in its implementation may be considered a breach of the professional standard of care. If a plaintiff became seriously injured in a fight with the student who exhibited behavioral issues, and if the school had notice of the student’s aggressive behavior but failed to address it through the IEP, the school may be held liable for breach of the professional standard of care and student injury.

Schools must develop policies to guide their operations, to provide educational services for students, to develop curriculum and to supervise teachers, all for the end result of providing education in a safe environment. Schools have policies that reflect their staff’s responsibility to report child abuse, how to implement the student code of conduct and how to curb hazing in athletics. For example, every state requires local school boards to develop and implement a policy to address school bullying. This becomes another source of the standard of professional care. If a student was identified as one who had bullied others and later seriously injures a student in a fight, one of the questions to be asked is: Did the school meet the professional standard of care required by state statute and by its own policy? Is there a nexus between any breach of care and the student injury? If the school did not have a policy to address bullying or if the policy in place failed to meet key components of state statute such as staff training requirements, those breaches may be a proximate cause of student injury.

 

Student Injury Lawsuits and Professional Standards of Care

Professional standards set the backdrop for case review and analysis. At the top of the list are regulatory requirements in the form of statute, regulation, and licensing standards. In cases involving the death or serious student injury, these are first standards I identify. For example, if the state of Delaware requires that the ratio of certified, trained adults to three-year-olds in a childcare program is one adult for every five children, then that becomes one of the standards. I determine whether the daycare acted within the professional standard of care and whether its actions were appropriate and reasonable under the specific circumstances. If, as an example, a child climbed on top of a table in a classroom, stood up, and was pushed off by another student, I determine how many children were under the care and supervision of the teacher at that time. If the teacher was responsible for 15 students when the injury occurred but the law says there were only to be five students, then one of my opinions might be that the breach of this professional standard of care was a proximate cause of student injury.

Next in line are the policies of the school, summer camp, daycare or other agency responsible for the care of children. In most cases, these policies mirror federal and state statutes and regulations, but sometimes they go beyond them. When the school develops its policies, those policies become part of the professional standard of care as expressed by that school, and the school can be held to compliance with them. In addition, other standards may apply, information contained in parent and staff handbooks. The school must comply with the standards in these documents if it is to demonstrate that it met the professional standard of care.

In some situations, beyond school policy, there may be unpublished standards — “unwritten rules” — that have been developed over time by the school administration. This component becomes another layer of standards and often is difficult to address because it is considered custom and practice within a single school or agency. It becomes difficult to argue against or to defend because in some cases these customs may run counter to professional standards of care. For example, a principal has developed a policy that, when a student misbehaves in the cafeteria, she brings that student to her office to sit out the lunch time. During the time the student is in the principal’s office the principal talks with the student about his behavior. The principal has done this for three years and there has never been a question. This became an unwritten rule, an unpublished standard and practice beyond school policy. However, official policy requires the principal to complete a referral form for the school counselor and the counselor is expected to meet with the student. On one occasion, after several disciplinary issues occurring in the cafeteria, and meeting with the principal in her office, this student attacked a classmate at the end of the school day. A thorough review of the school policies will include the standard developed by the principal which, in this case, was contradictory to official school policy. Although counseling this student in the principal’s office might be shown to have been somewhat reasonable, counseling with the school counselor as per written school policy might have avoided the aggressive behavior and prevented student injury.

 

Professional Standard and School Liability

The appropriate and acceptable standard of care is demonstrated when a person, such as the supervisor of a child, acted reasonably and prudently in a specific circumstance. Failing to act reasonably and prudently may be a proximate cause of student injury. Compliance with standards alone does not entitle the school to summary judgment. Some standards are not adequate for specific situations. Customary usage and practice of the industry is relevant for determining whether a standard had been met. However, such usage cannot be determinative of the standard (Marietta v. Cliffs Ridge, 385 Mic. 364, 189 N.W. 2d 208 [1971]). On the other hand, if a school failed to comply with standards, it makes evidence of improper care easier to show. For example, the required student-to-teacher ratio in a preschool program of three-year-olds is one adult to five children. A school did meet that standard but a student was injured when he ran into the corner of a table when the teacher wasn’t paying attention. Just because the school complied with the teacher-to-student ratio does not entitle it to summary judgment. Often this is argued but other relevant circumstances must be assessed such as the attention of the teachers. If the school had one teacher supervising ten students when an injury occurred, this is clearly a breach of the standard and likely will be a contributing factor to the injury of the child.

Failure to follow some standards may not be related to student injury or loss; there must be proximate cause. In some situations, the level of care promulgated by the standard may not be necessary for providing a safe environment; the standard may go beyond a minimum requirement. The reasonable and prudent professional standard is, therefore, added to the pyramid of standards of care. This standard can be assessed only by a person who is qualified through education, training and professional experience to render such an opinion.
Professional standards are the foundation for determining liability when a child is injured or killed while under the care of a school, camp daycare center, or other agency entrusted with child safety. The many layers of standards, whether these standards were followed, whether actions were appropriate under the circumstances, and whether an action or lack of action was a proximate cause of injury or death weave a complex web in any determination of liability.

Student Injury Liability and Emergency Response in Schools for Children with Medical Conditions

Pediatrician doctor bandaging child's leg. Mother holding baby in her hands. Close-up.

Schools have a duty to know about a child’s critical health condition to prevent student injury.

Many school-aged children have medical conditions about which teachers, nurses, and others who are responsible for their health, safety, and well-being should know. If not addressed in the right way by administrators, teachers, or other officials, these conditions can result in a catastrophic incident, student injury and not to mention costly litigation. A student with a known heart defect, for instance, is vulnerable in a physical education class if the teacher is not informed of the child’s condition and does not institute appropriate precautions or prepared to respond in a medical emergency. If cafeteria personnel in a daycare center know that a child has a peanut allergy but fail to supervise the child appropriately, the child can go into shock if she is allowed to sit at a table where another student is eating peanut butter. In situations like these, if a plan for the child’s care was either not in place or developed but not communicated to the staff, the child might suffer irreparable harm — or even die.

Schools (and this is applicable as well to other agencies responsible for supervising children, such as daycare centers and summer camps) have a duty to know about a child’s critical health condition. Having this knowledge requires them to develop adequate plans for the child’s daily routines and allows all appropriate staff to plan for a quick and effective response to an emergency when necessary. Armed with as much information about the child as possible, the school can protect itself from liability by being aware of foreseeable harm to a child in specific situations — be they in class, on the playground, or on a class trip — and by instructing staff about a child’s special supervisory needs.

 

Duty to know, plan, inform, and execute a plan to prevent student injury

A school has a professional duty to collect as much health information about the children in its care as possible. Typically, before a child is admitted, parents complete a health form soliciting information about any chronic illnesses, allergies, or other conditions that the staff should know. The plan that is eventually developed for addressing the special health needs of a child is only as good as the information provided by the parent. In some situations, a parent might not provide full information that might be critical for protecting the child’s safety and health. If sections of the form are left blank, it is the school’s responsibility to follow up and ask for it to be completed in full. This is both necessary for the child to get the full benefit of his education, and critical so that staff may be informed of specific considerations that can mean the difference between life and death of a child and prevent possible student injury.

Some students have a sustained or temporary medical condition that interferes with their ability to fully benefit from their educational program. For example, a student who recently had knee-replacement surgery will not immediately be able to climb the steps to get to her science class. This temporary disability requires a Section 504 plan, which differs from an Individualized Education Plan in that it does not involve special education services. Required as part of the Federal Rehabilitation Act of 1973, a Section 504 plan is commonly instituted to provide accommodations for students who have a broken leg or other acute conditions, or who are undergoing disabling treatments, such as chemotherapy, on a limited-time basis. For the student who underwent knee surgery, a 504 plan could indicate, for instance, that she is allowed to use an elevator that is off limits to others to be able to get to her science class. This plan is developed with the parent, the student, and the school nurse or others as appropriate, depending on the condition. School staff should be informed of the plan, and its implementation should be monitored on a regular basis.

If the school fails to develop such a plan or fails to assure that it is fully implemented, it could be liable for further injury to the child. In a similar case in which I was engaged as the child-safety expert witness, the plaintiff sued for damages based on the school’s failure to implement the plan. The elevator was not working on several days, forcing the student to climb the steps to the second floor. One day, she fell and re-injured her knee. Once there is recognition of the need for an accommodation, the school is obligated to assure it is available and, as in this case, that equipment is fully functioning.

 

Caring for children with special healthcare needs

In the journal Pediatrics (102:137–140), McPherson et al define children with special healthcare needs as “those who have or are at increased risk for a chronic physical, developmental, behavioral, or emotional condition and who also require health and related services of a type or amount beyond that required by children generally.” Special healthcare needs can include asthma, diabetes, cerebral palsy, bleeding disorders, metabolic problems, cystic fibrosis, sickle cell disease, seizure disorder, sensory disorders, autism, severe allergy, immune deficiencies, or many other conditions. Some require daily treatments, while others require only observation for signs of impending illness and the ability of caregivers to respond in a timely manner.

As with acute conditions, a collaborative approach involving parents, the child’s healthcare provider, teachers, and the school nurse is important for protecting the child’s health, safety, and well-being and to protect the school from liability. Development of a healthcare plan that includes critical background information about the child and his special healthcare needs, how all staff will be informed about the need, and how staff will be trained to respond to an emergency will help to protect the child from harm and the school from potential liability.

 

When is a school or child care agency held liable?

In many cases for which I have been engaged as the school liability expert witness, I have found that the school or childcare facility had no knowledge of a special healthcare need, nor was there a care plan in place. In one case, for instance, the parent of a child who died after running two miles in physical education class failed to inform the school of the child’s chronic heart condition. This condition restricted him from such activity. Without this information, the school was correct in treating the student like every other sixth grader, including him in the activities of the physical education class.

In some other cases, the school had a plan but it wasn’t adequate, wasn’t monitored, and the staff was unaware of the information in it — placing a child at risk of a life-threatening event or death. In one such case, a fourth- and fifth-grade physical education teacher instructed her students to go onto the field, run three laps amounting to approximately a mile, and return to the gym. One of the girls who ran the laps then entered the gym, walked halfway across the floor, and collapsed. It turned out that at the beginning of the school year, the parent completed a standard medical form noting that her daughter had a heart condition, was under the care of a pediatric cardiologist, and was restricted from sustained exertion — but the nurse simply filed this information away in her office. The nurse failed to alert any teachers — including the physical education teacher, in whose course the student would most likely encounter difficulty. The physical education teacher, in my opinion, was not at fault because she had no notice of the girl’s health problem and restrictions. Expecting the children to run the course was reasonable and was included in the course outline, and she had no reason to exempt this child. However, it was also my opinion that the school breached the professional standard of care when the nurse, having notice of the student’s chronic medical condition and restrictions, failed to inform the teachers, especially the physical education teacher. Unfortunately, the student did not recover, and the school withstood protracted wrongful-death litigation.

 

Implementing a plan to avoid life-threatening events

Any child who meets the criteria for having special healthcare needs and who presents an increased risk for a serious health event or death should have a routine- and emergent-care plan completed by their primary care provider. It is important that the assessment of the primary care provider include significant physical findings so that caregivers and teachers can develop a plan. An emergency-management plan also should list activities or services that are restricted or that differ from those typical of most children, and it should include specific instructions on how to provide medications, procedures, or implement modifications or emergent care. If these instructions are not clear and if the school requires further information, it is appropriate to ask the parent for permission to consult with the medical provider to ensure that the student receives proper care.

Every school employee, including teachers, bus drivers, cafeteria staff, custodians, and others, should be informed about the special healthcare needs of every child in the facility. One person, preferably the nurse or another designated person, should serve as the funnel for this information and as the person responsible for the development of a healthcare plan, training of staff, and follow-up with parents and the child’s healthcare provider. The staff nurse has a professional duty to understand the unique health issues of a child, transmit that information to all staff, monitor the child’s health, and ensure that any equipment that may have to be used in an emergency situation involving this child is accessible, working, and can be used by others if necessary to save a child’s life.

Often this fails to happen, as in the case of a high school student who collapsed in gym class. The teacher sent another student to the nurse’s office to let her know what happened. The nurse arrived and reached for a defibrillator that was buried in a supply closet, still in the original box it was shipped in. She brought it to the gym only to discover that the battery was not charged and the device was useless. The student died because he was not treated in time. The school and nurse were sued for gross negligence. As the expert witness in this case, it was my opinion that the school administration breached the professional standard of care when it failed to assure that the defibrillator was operable and not locked in an inaccessible area. By failing to make the defibrillator accessible and in proper working order, the nurse acted in deliberate disregard for the health, safety, and well-being of the children in her care, including this child.

To reach an opinion as to whether a school met the professional standard of care, my review and analysis answers, among other questions, whether it acted appropriately and reasonably under the circumstances. These circumstances are always unique to each case and include whether the agency had a duty to develop and implement certain policies and procedures imposed by the state or licensing or accrediting authority. If, for instance, the school had a duty to develop a policy requiring health care screenings of all incoming students but the school failed to have such a policy in place, then it breached that duty and failed to adhere to the professional standard of care. Whether this failure proves to be a substantial cause of injury, health episode, or death is considered in light of the totality of the circumstances. Other standards that I examine include hiring, training, and informing competent staff; maintaining emergency equipment; and updating emergency contact information. If it can be demonstrated that there was a failure to act within the professional standard of care with regard to these and other specifics — and that failure is a proximate cause for serious injury, health episode, or death — the school or agency may be held liable.

On the other hand, my review might reveal that the school or other child care agency did everything to protect the health, safety and well-being of children: It hired competent staff, obtained critical health information about the child, maintained its emergency equipment, and otherwise fulfilled the professional standard of care — but a specific child’s medical condition was not made known by the child’s parent or physician, preventing the school from acting on that information. In cases such as these, when the child suffered a catastrophic event, the school may not be held liable.

 

Conclusion
Protecting the health, safety, and well-being of children entrusted to the care of staff in schools, daycare centers, camps, and other facilities falls within the professional standard of care for such agencies. How they implement this standard and whether they act appropriately and reasonably under specific circumstances determines liability. When an agency knows of the special healthcare needs of a child, develops a plan to address the need, informs staff of the issue, provides an emergency plan of action, maintains its emergency equipment, and takes any other steps necessary to protect the child, it will have met its professional standard of care. Without taking these steps, the school or agency may be held liable for a child’s injury, catastrophic health episode or death. If the agency had no knowledge of, or reasonably could not have known, of a child’s special healthcare needs, then the agency is unlikely to be held liable.

Assessment of Liability: Child Abuse and Injury in Residential Care

Residential School LiabilityIn my profession as an education administration and student supervision expert, I have observed that residential schools and boarding schools present a higher duty than day schools to supervise children and a greater opportunity for the school to be found liable for child abuse and injury. When children are living and learning in a program 24/7, staff must demonstrate not only a professional standard of care, but also a reasonable and prudent parent standard of care. Although related, these standards are distinct and must be appropriately and reasonably applied in a setting where staff serves as surrogate parents and others serve as teachers, counselors, and psychologists. When a child is sexually assaulted, administered unnecessary corporal punishment, or is injured or dies in a residential school, both of these standards need to be addressed.

Residential programs, particularly in large institutional settings, carry inherent risks to children, including the number of staff in positions of authority who interact with children, development of institutional norms that may be different from those in the broader community, and a tendency toward closed communication systems where information is kept within the institution. In the field of education administration and supervision, certain standards guide the care and protection of children in order to prevent child abuse and provide adequate care. These standards are greater than those of a reasonable parent or the general public to ensure that risks involved in the care and education of children are appropriately assessed and are inclusive of ways to address those risks. Within this framework, it is essential to develop appropriate policies, regulations, and procedures that ensure that standards of behavior follow applicable state and federal laws and to carry them out. At a minimum, policies, regulations, and procedures should ensure that:

  • Students know what constitutes unacceptable behavior and how to recognize it
  • Policies and procedures for reporting mistreatment and child abuse are established and made known to students, parents, and staff, and that parents can feel confident that complaints will be addressed appropriately
  • Students and parents participate in the development and review of a plan of care
  • Staff selection, supervision, and training ensures that staff has the knowledge and skills necessary to care for students and meet their needs
  • Accountability processes are in place to monitor whether students’ care needs are being met and that policies and procedures are implemented
  • Student care practices are consistent with established standards and policies
  • Students regularly participate in community activities and that community members are involved in school activities

Reasonable and prudent parent standard

California’s Welfare and Institutions Code (sections 362.04 and 362.05) defines the “reasonable and prudent parent standard” as careful and sensible parental decisions that maintain the child’s health, safety, and best interests. The goal of the reasonable and prudent parent standard is to:

  • Provide the youth with a “normal” life experience in out-of-home care
  • Empower the out-of-home caregiver to encourage youth to engage in extracurricular activities that promote child well-being
  • Allow for reasonable parenting decisions to be made by the out-of-home caregiver without waiting to obtain approval from a social worker or institution
  • Remove barriers to recruitment and retention of high-quality foster caregivers
  • Reduce the need for social workers to either give permission or obtain Juvenile Court approval for reasonable caregiving activities
  • Respect the rights of youth in out-of-home care

The U.S. Department of Health and Human Services’ Administration on Children, Youth, and Families uses a similar definition of the standard, while adding recognition of the need to “encourage the child’s emotional and developmental growth.”

While there are many definitions for what would be considered a reasonable and prudent parent standard, the general concept is that parents are often — if not daily — faced with decisions about their children’s care that involve judgment. Parents who are both reasonable and prudent will make decisions carefully, weighing the benefits and potential risks to come to a sensible decision that is in the best interest of the child.

Professionals who care for children in their custody have a duty to meet the same standard, but also have a higher duty to meet the standards of a reasonable professional. The reasonable professional standard of care includes ethical or legal responsibility to exercise the level of care, diligence, and skill prescribed in the code of practice of his or her profession.

The professional standard of care with regard to the supervision of children in both day schools and residential and boarding schools is that staff act appropriately and reasonably under the circumstance to protect children from harm, that the school develop and implement policies to implement and oversee supervision, and that the staff be appropriately hired, supervised, and trained.

Standard of care for residential and boarding schools

Both the reasonable and prudent parent standard and the professional standard of care are applicable in residential and boarding school settings.

When an institution is established by a government, or when a boarding school program is established by a private board or an individual, the government or board should assure that, at the very minimum, the reasonable and prudent parent standard is met and that adequate programs, services, and student supervision are in place to maintain and protect their health, safety, and well-being. The professional standard includes every aspect of the reasonable and prudent parent standard in addition to ensuring that an adequate infrastructure is established to operate a residential or boarding school. Infrastructure means developing and implementing policies, procedures, and regulations that address such activities as: hiring, supervision, retention and training of staff; staff discipline; development of programs and services for students according to their needs; student supervision and discipline; administration; human resource planning; development and implementation of training and investigation of complaints; and follow-up on issues that can cause foreseeable harm to students. This infrastructure enables a residential or boarding school to meet both the reasonable and prudent parent standard and the professional standard of care.

When applying the reasonable and prudent parent standard, schools and other institutions that care for and supervise children have a greater responsibility than parents. For example, a parent of a child with multiple disabilities living at home requires certain necessities, such as adequate shelter, nutrition, health care, a safe environment, a caregiver while parents are working, and other services that provide for the child’s adequate supervision and protection. Before these necessities can be provided, certain family systems that allow for such care to be provided must be in place. These systems include income for providing a home, food and clothing, and adult collaboration. Here, in addition to the systems necessary to meet the reasonable and prudent parent standard, the professional standard of care is added. This standard is defined by the level of care, diligence, and skill prescribed in the code of practice for the profession; by the person’s education, training, and professional experience; and by how other professionals in the same discipline would behave in the same or similar circumstances.

Residential and boarding school personnel act in loco parentis to educate and care for children who are not living at home. As such, these institutions should meet the reasonable and prudent parent standard and, because professionals are responsible for students in the residences, the professional standard of care applies as well. Based on my professional experience, identifying children with specific disabilities who are not able to receive adequate services at home with their parents or in their local school, and placing them in a location where professionals with specialized education and training are more able to provide necessary care and education, is the standard of care.

Expert role in assessing standards of care

As an education administration and student supervision expert witness, I am called to assess and analyze whether applicable standards of care were met in lawsuits involving injury, death, child abuse or sexual abuse of students attending residential school programs. To make that analysis, I conduct an extensive review of documents, including policies and procedures for hiring and supervision of staff and supervision of children in residential and boarding schools.

In the case of child abuse, sexual abuse, death, or serious injury, it must be determined whether the agency, through its administration and/or other employees, acted within the reasonable and prudent standard of care and within the professional standard of care. Policies and procedures must be reflective of the nature of children in general and, specifically, the nature of children attending the residential or boarding school. For example, if the facility educates and provides psychological assistance to children who are chronic sex offenders, it makes sense that the school develop and implement policies that address staff training in the prevention, identification, and reporting of sexual abuse. Such a facility would also be expected to have and enforce policies that provide a high level of line-of-sight and close supervision of children during the day and, especially, during such less-supervised times as evening and bedtime. If a child is sexually abused in a residential center that does not develop and implement appropriate policies that consider the nature of children in its care, that facility might be found negligent.

Many times, I find during a case review that the residential or boarding school failed to develop policies and supervise or appropriately train its staff — creating a situation where students with a propensity for disruptive behavior or sexual acting out are able to do so. When a student in a residential or boarding school is known to be overly interested in sexual matters or has inappropriately acted on those interests, this requires staff to consider a higher level of supervision for that student than typically provided to others in the facility. This is because there is a certain level of foreseeability that the student’s sexual acting out may place other students in danger of harm. When an agency has notice of a child’s propensities but fails to adequately inform and train staff and provide appropriate supervision, this is a breach of the professional standard of care that may place the health, safety, and well-being of children at risk. Failure to develop and implement appropriate policies and supervisory systems may be a proximate cause of harm to a child, resulting in costly litigation.

Real case examples

In many cases I have examined, schools have made claims to suggest that they are sensitive to the needs of vulnerable youth they serve, and that these children’s needs will be addressed in a way that protects their health, safety, and well-being. A boarding school in Vermont that advertised that, for more than 30 years, it had worked with boys who face dyslexia and related language-based learning challenges. Approximately 50 students from grades 6 through 12 who attend this school during the day live on campus. A residential school in New York had 12 cottages for housing “at-risk” boys between the ages of 6 and 20. Each cottage housed between 9 and 16 students. This school stated that it is staffed 24/7 with professionals experienced in helping children deal with anger, feelings of loss, and educational failure. According to the information packets of both schools, an important part of life is that the schools offer a structure that helps residents feel safe. Another boarding school for teens who are in trouble with the law or having substance abuse issues offered year-round enrollment for girls and boys ages 13-17. A military, special-needs boarding school in Canada that enrolled 125 students offered specialized programs for children in grades 6 to 12. And a sport-oriented boarding school in Canada stated that it’s important for their student-athletes to have parent-like advisors while living away from home.

The accommodations promoted by each of these schools suggest that they have the infrastructure to meet both the reasonable and prudent parent standard and the professional standard of care. In cases involving some of these facilities, however, it was my professional opinion that breaches in these standards contributed to student injury and/or constituted child abuse.

In a residential program for troubled boys, a student crawled out a window to a flat roof and attempted to jump across a gap to another roof. He fell 20 feet, resulting in serious injury. In a boarding school for girls, a staff member caught two girls kissing but didn’t investigate, interview them, or recommend counseling. A few weeks later, the aggressor raped her target. In another school, an older boy left his room, crossed the hallway, and entered the room of another student. He proceeded to sexually abuse the student while staff was to be posted in the hall to check rooms every 15 minutes. My review of this case revealed that staff was not present as they were supposed to be.
When a child is abused, injured, sexually abused, or dies under the supervision of staff at a residential or boarding school, the review is focused on two standards: the reasonable and prudent parent standard — because children in these settings are in a substitute home with substitute “parents” — and the professional standard of care required of educated and trained professionals in these settings. Although day schools must meet the professional standard of care, the reasonable and prudent parent standard is not typically applied in these settings. Children in day schools must be supervised according to the professional standard of care under the circumstance, whereas children who live at a residential or boarding school must also be supervised to the reasonable and prudent parent standard.

Liability in Child Injury Cases at Non-School Programs

Personal Child InjuryIn settings where children are supervised by adults, we often think about traditional settings, such as schools and summer camps. But these are not the only places where children participate in activities that require adult supervision and which can result in child injury cases. Some nontraditional settings include resort and vacation day care programs, community recreation centers, church-sponsored events, and Boy and Girl Scout activities, among others.

In these and other nontraditional settings, when children are involved and adult supervision is required, the organization has a duty to protect the children. Breach of that duty may extend beyond inadequate supervision or lack of supervision; staff and volunteers must be appropriately trained, and rules and regulations must be considered. If a plaintiff can show that poor supervision, inadequate training, or a lack of rules and regulations is a proximate cause of a child’s injury, the organization may be liable for child injury cases.

Importance of Training and Supervision Standards in Child Injury Cases

Schools and summer camps hire certified and trained employees, and they generally provide additional staff training in supervisory methods related to the age of the children and the activities in which they participate. Schools and camps also have formal child supervision policies and procedures, and they evaluate staff on their supervisory performance. Beyond schools and camps, however, many organizations with supervisory responsibilities for children are often much less rigorous in their methods.

Most frequently, these organizations do not have written policies and don’t provide training on how to keep kids safe from harm. Few provide adequate staff training and child supervision. These are often the elements that plaintiff will address in a lawsuit claiming negligence. Regardless of the organization, once it sponsors an activity involving children, it is responsible for their safety, which is incrementally enhanced with the level of appropriate training and supervision. In child injury cases in programmatic situations, approximately 80 percent of plaintiffs’ allegations involve negligent supervision.

Volunteers become an integral part of the work of most not-for-profit organizations and often fill a gap when paid employees are not available. At many organizations that provide services for children, volunteers conduct countless tasks. Churches often see themselves as “families” and sometimes may overlook the importance of training or supervisory functions of Sunday school teachers or of parents who organize and conduct activities such as Friday evening scavenger hunt. But all volunteers need adequate training.

For these organizations, external resources are available. GuideOne Insurance, for instance, offers SafeChurch training programs that provide church workers and volunteers important knowledge about potentially significant safety risks. These programs cover facility safety, transportation safeguards, and other categories. The company also provides informational resources about child abuse prevention, daycare and nursery safety, and playground safety.

To protect themselves from potential liability in child injury cases, many churches and other volunteer organizations have policies addressing the hiring of paid staff and the engagement of volunteers who work with and supervise children. For example, the Archdiocese of Baltimore requires each volunteer who has substantial contact with children at a parish or school to complete an application. Three references are provided, checked, and documented. A criminal history screening is conducted, and the volunteer must participate in training about child abuse and the protection of children. The archdiocese uses a compliance management system to track completion of these requirements.

Cruise ships offer an example of a nontraditional supervisory setting involving paid employees. Many cruise lines offer programs that provide young passengers an opportunity to explore art, play games, and to get acquainted with other children. Holland America Line, for instance, offers children’s programs during the day so that their parents can be on their own for a period of time. Most programming is during sea days, with late-night group babysitting available on some ships for a fee. On Carnival Cruise Lines, Camp Carnival is a fleetwide program for children who are 2 to 11 years old. Carnival also offers separate programs for children aged 12–14 and those 15–17.

These programs and others such as dance studios, karate centers, gym daycares, township recreational programs etc. are essentially the same in terms of duty as those provided in school and by other organizations, and the people responsible for children in their care have a duty to supervise them appropriately in order to protect them from harm. Cruise lines that offer youth programs generally accept all children who are potty-trained and meet the minimum age requirements, without knowing anything more about the child or his or her history of behavior. What parents don’t typically realize is that the cruise line can be held liable for child injury when supervision of these children is negligent.

Parents have a “contract” with caregivers and teachers to supervise and protect their children. In a child injury case for which I was engaged as the child supervision expert witness, a parent left his 7-year-old son in an afternoon program on a cruise ship, where about two dozen other children ranging in age from 7 to 10 participated in arts and crafts projects, a sing-a-long, snack time, and a nap. During nap time, when children were lying on mats on the floor and covered with light blankets, a 10-year-old moved over to the 7-year-old and sexually assaulted him. Testimony from other children in the room was that the person who was to have been supervising stepped out on deck to talk with another ship employee, leaving the children unsupervised for several minutes.

Determining duty was not an issue. Because the parent entered into a “contract” with the supervisor, and essentially the cruise line, that his child would be safe, the cruise line had a duty to protect. That duty required that a responsible adult be present to oversee the children during nap time and to intervene if any behavior on the part of a child might cause injury to another child. The program did have a policy that during nap time, floor mats were to be kept at least 18 inches from each other. This policy was practical, but it did not prevent a child from sexually abusing another. The only thing that would have prevented this was diligent supervision by a competent adult employee. Because the supervisor was not in the room for a significant amount of time, the opportunity arose for the 10-year-old to sexually assault the younger child.

Negligent supervision of children or lack of training for adults — be they paid staff or volunteers — may not necessarily create liability for an organization if a child is injured physically, is sexually assaulted, or dies while in the care of an organization. In child injury cases plaintiff must show that inadequate supervision or training is the proximate cause of the incident. The competence and training of the person supervising, the location of the supervisor at the time of injury, and the number of supervisors on duty are key elements in determining liability. The age and abilities of the child and the foreseeable dangers in the location of an activity are additional factors when determining liability.

Importance of Adequate Policies and Procedures in Child Injury Cases

As with schools, daycare centers, and summer camps, nontraditional organizations must consider policies and regulations when children are involved and supervised by adults. There are rules that may be developed into written policies made by the organization’s governing body; rules that are operational in nature, made by administrative and supervisory personnel; those that are considered ministerial acts for which there usually is liability; and rules of a specific activity that the children are engaged in, such as baseball, karate, or even crossing the street as a group. At this level, the supervisor or the person in charge of the conduct of the activity is required to see that the rules are followed.

The overriding assumption is that rules are developed to provide for the safety and protection of children, and that if they are not enforced, there is a greater possibility that a child will become injured during the activity. However, while there may be a duty to establish rules and regulations — either by statute or by virtue of a potentially dangerous situation — the mere fact that there were no rules or regulations is not negligence per se in child injury cases. As with lack of supervision, lack of rules and regulations must be the proximate cause of the injury.

One of the key responsibilities of supervision in any child-centered organization is to identify dangerous conditions or activities and then either warn of the condition or stop the activity. The supervisor must take appropriate action — and possibly create the rules on the spot — for the protection of the children. Duty to warn contemplates opportunity to know of danger (actual or constructive notice) and to have time to communicate it. Two children colliding while running on the playground may not rise to the level of negligent supervision in a summer camp because it’s not unusual for 6- and 7-year olds to run during recess on the playground. This would not be considered a dangerous condition or activity for which the counselor would need to warn or stop. On the other hand, when children are throwing rocks at each other, the supervisor has a duty to end the behavior and to warn children of the danger that someone can become seriously hurt. Then, the supervisor needs to keep diligent watch over the children and the area to ensure that the activity doesn’t reoccur. A supervisor should also prevent children from using defective equipment that would cause an activity to become dangerous. This might include a hazardous condition on the playground, unsteady gymnastic equipment, or a karate mat that has lost its padding.

Conclusion

The standard of care owed to children who participate in organization-sponsored activities must be consistent with legal standards and the standards of a reasonable person under the circumstances. In order to fulfill their mandate to see to the safety of children, nontraditional agencies that provide services for children need to know the requirements for reasonable and prudent operations. Anticipating dangers and correcting for them by warning participants and eliminating the dangers will help to protect children from harm. Training supervisors to keep an eye on children at all times and to anticipate that children don’t always act the way one might expect — they might run into the street or throw a rock at another child, for instance — will help protect children and the organization.

The standards by which nontraditional organizations operate are not always clear-cut. The methodical and systematized practice of safety education within the agency until all employees and volunteers are thoroughly educated and habitually perform their functions with safety as the uppermost concern will go a long way toward protecting children from harm and protecting the organization from costly litigation for child injury cases.

Mandatory Child Abuse Reporting and School Liability

Lost and aloneWhen child abuse is alleged to have taken place in a school, daycare facility, preschool program, summer camp, or other entity responsible for the supervision and safety of children, there is always the possibility that the entity may be liable if negligence can be established. Schools and other entities with a duty to protect children often become embroiled in lawsuits alleging that breach of this duty was a proximate cause of a child’s injuries. Though laws vary, states adopt a broad definition of child abuse, including physical and emotional abuse, neglect and abandonment, incest, sexual molestation, and sexual exploitation. Typically, a child abuse report must be made to a designated state agency responsible for child protective services when a person, in his or her official capacity, suspects or has reason to believe that a child has been abused or neglected, or knows that a child has been subjected to conditions that could reasonably be expected to result in harm.

Mandatory Child Abuse Reporting

For example, if a parent takes a child to the emergency room after the child comes home from a day care center with an injury, the treating physician may make a child abuse report based on a reasonable suspicion that abuse occurred at the center. The child protective agency will conduct an investigation to determine whether the report can be substantiated. If it is substantiated, the parent may file a civil lawsuit against the daycare center for claims that might include negligent supervision of children; negligent hiring, training and supervision of staff; breach of professional standards of care; breach of the day care center’s own standard; and any other claims that may have been a proximate cause of the injury.

All U.S. states and territories have laws identifying individuals who are required to report suspected child abuse. Social workers, doctors, teachers, school principals, and other professionals who frequently work with children are usually identified as mandated reporters. Mandates aside, any person with reasonable cause to believe that a child was abused can make a report — and a handful of states, such as New Jersey and Wyoming, requires anyone who knows of or suspects abuse to make a report. State laws anticipate that schools and other entities will have developed internal systems for processing child abuse reports and complying with state statutes. The law may also require the school or entity to provide its employees with written information explaining reporting requirements and to provide training in their execution.

Lack of Child Abuse Reporting Training and Procedures

During the course of an investigation into alleged child abuse, it is not uncommon to learn that staff at a daycare center or school had knowledge of, or had observed behavior indicative of, child abuse or neglect but failed report it to the appropriate agency. Failure to report often results from lack of training about mandatory child abuse reporting laws and detection of child abuse and neglect. This can leave a school or other entity involving children liable for a child’s physical and emotional injuries. Thus, for the protection of children, it is extremely important that all employees are trained in the prevention, detection, and proper reporting of child abuse. Many schools and daycare centers bring in outside companies and professionals to provide training.

Schools often lose a civil lawsuit when a plaintiff’s attorney can demonstrate that staff was not aware of their responsibility to report suspicion of child abuse. Consider this example: An elementary school librarian watched as a child with a disability who exhibited behavior problems was aggressively dragged out of the library by her special education teacher and forcefully slammed onto a chair in the hallway. Concerned, the librarian reported the teacher’s behavior to the principal. “Oh that’s happening again?” the principal responded. Neither the librarian nor the principal subsequently reported the incident to the proper authorities, even though the principal had prior reports of this teacher mistreating students. The teacher’s behavior continued for several months until a parent went to the police and filed a complaint.

In this case, if the plaintiff’s attorney can demonstrate that the teacher’s behavior would lead a reasonable professional to report such behavior — yet the lack of such a report allowed the behavior to continue, ultimately resulting in harm to a child — then he or she will be in a strong position to settle in favor of the child. If, on the other hand, the defendant’s attorney can demonstrate that the school had appropriate policies and procedures; adequately trained its staff in the prevention, detection, and reporting of child abuse; disciplined the teacher appropriately when an incident occurred; and took other measures to protect students, including the plaintiff, the school will have a better chance of defense.

At schools and other entities responsible for the supervision and safety of children, staff may learn of abuse in two ways. They may see abuse or have direct knowledge of it. Alternatively, they become aware of the possibility of abuse through rumors, innuendo, or secondhand reports. A pattern of poorly explained bruises and other injuries may raise reasonable suspicion of abuse on the basis of conversations with the child or his or her parents, family, or friends.

To protect children and to allay fears of legal reprisals, people who report child abuse are granted civil and criminal immunity. In some states, immunity is absolute, meaning there is no liability, even for maliciously and knowingly submitting a false report. In other states, immunity is granted only for reports made in good faith. Good faith will be presumed if the reporter acted in the discharge of his duties and within the scope of his employment, and if the report did not result from willful misconduct or gross negligence.

Even with the protection of immunity, administrators and teachers often hesitate to make child abuse reports. Failure to make a report is a misdemeanor that exposes the educator to the possibility of criminal prosecution. There is also the possibility of civil liability if harm done to a child might otherwise have been prevented by reporting prior behavior. It is, therefore, a legal imperative that teachers, counselors, and others responsible for the safety and welfare of children file a report whenever they have reasonable cause to suspect child abuse.

Carrying Out the Duty to Protect Students from Child Abuse

Schools and other agencies have a duty to protect children in their care from harm. This includes abuse inflicted or created by its own staff and by fellow students. Although laws vary from one state to another, definitions of abuse often are based on the federal Child Abuse Prevention and Treatment Act (CAPTA) of 1974. CAPTA identifies child abuse and neglect as “the physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child … by a person who is responsible for the child’s welfare.”

While acts by a staff member that result in student injury generally fit into the category of negligence, a teacher or an administrator as a state actor can generate a state-created danger. As opposed to negligence, state-created danger is generally applied under Section 1983 of Chapter 42 of the United States Code. School officials can be held responsible when they knew of impending danger, were recklessly indifferent to it, and thus knowingly created a dangerous environment that led to an otherwise preventable injury. Section 1983 has been used to seek monetary damages for violations of what courts refer to as bodily integrity, which is protected by the 14th Amendment, which prohibits “unjustified intrusions on personal security.” Most such cases involve either sexual molestation or excessive corporal punishment.

At the state level, case law has established a school’s responsibility for protecting students against the actions of other students, in addition to the actions of staff members. In Frugis v. Bracigliano (177 N.J. 250 [2003]), the New Jersey Supreme Court ruled that “[a] board of education must take reasonable measures to assure that the teachers and administrators who stand as surrogate parents during the day are educating, not endangering, and protecting, not exploiting, vulnerable children.” Four years later, the same court, in L.W. ex rel. L.G. v. Toms River Regional Schools Board of Education (189 N.J. 381 ([2007]) expanded “reasonable measures” to include protection from student-on-student harassment. This case involved a youth whom classmates taunted with homosexual epithets. The majority opinion stated that “although Frugis involved the need to protect children from adults, its rationale also applied to the present circumstances.”

Schools often establish procedures requiring teachers and other employees to report suspected abuse to the principal or school social worker. When a statute requires a teacher to make a prompt report of suspected abuse to state authorities or law enforcement, the teacher is not relieved of this obligation simply because he or she has followed internal reporting procedures. Some state laws do excuse a teacher from state-mandated reporting if someone else either has done so or will report the incident of suspected abuse. In these situations, teachers should always follow up to ensure the report was made to the appropriate agency.

Assessing whether a school or other entity acted reasonably, appropriately, and within the professional standard of care in a given circumstance requires comparing the standard (state law requirements and the school’s own policies and procedures) against school officials’ behavior. Their actual behavior, or response to an issue of abuse, is established by reviewing the facts as identified through reports and testimony. For example, if a school requires that all staff receive copies of the state statute and the school’s own policy governing the prevention, identification, and reporting of suspected abuse, the plaintiff’s attorney may argue that the school either failed to have the policies required by law or, at best, had these policies in place but failed to implement them effectively, constituting proximate cause of injury to a child. The defendant’s attorney, on the other hand, will argue that the school or entity met the professional standard of care by having appropriate and reasonable policies and procedures but that an intervening element, such as an employee’s willful disregard for this standard, was a variable leading to the injury.

Should the School Have Known of Child Abuse?

To what extent must a school or other entity responsible for care of a child have knowledge of a reason to take action before it can be held liable? A Kansas case is illustrative of this point. In Canaday v. Midway Denton U.S.D. No. 433 (218 P.3d 446 Kan. Ct. App. [2009]). a student alleged abuse by a coach whose predisposition to sexual misconduct was known by the school. The school countered that that coach’s conduct was unforeseeable. Prior to the allegation, the superintendent received two reports from other students who claimed that the coach inappropriately touched them. A prior investigation did not reveal evidence to support a claim of misconduct at that time, though the court concluded that the investigation provided grounds for the case to survive summary judgment and that a jury should determine whether the school should have foreseen the teacher’s conduct.

In another example, a federal court in Pennsylvania determined that school officials must take prompt legal action if they know or suspect that a teacher or other staff member is abusing a child. In Kimberly F. v. Northeastern Educ. Intermediate Unit 19 (2007 U.S. Dist. LEXIS 35778 [M.D. Pa. 2007]), a parent of a child with autism sued on numerous federal and state grounds, alleging that the teacher hit, grabbed, stepped on, verbally abused, and physically restrained their child. The suit also claimed that two assistants had notified supervisors, but the supervisors purportedly failed to investigate or report the teacher’s alleged conduct to child welfare authorities. The parent claimed that the supervisors instead accused the assistants of “breaking a silent code” and transferred them to another district. The court wrote that it was reasonable to infer that the supervisors “were on notice about [the teacher’s] alleged abusive acts and knew or should have known that their nonfeasance would allow the abuses to continue.” The court disallowed the supervisors from asserting qualified immunity as a defense.

Summary

Some things a school or other entity should consider to protect the safety of children in their care and to safeguard themselves from liability:

  • Train staff to identify indicators of abuse and about their duty to report
  • Develop and rigorously enforce a clear policy on each employee’s role in protecting children and responsibility for reporting abuse
  • Employ screening methods and follow state background check laws to keep abusers from having contact with children through the hiring process, and carefully check employment references
  • Educate children in how to recognize abuse and how to respond when they are abused

Together, state law and internal policy constitute the professional standard of care for a given school or other entity entrusted with the care and safety of children. The question of whether the entity acted reasonably and appropriately and within the professional standard of care with regard to the protection of children is addressed through the context of both. There are common elements in state child abuse statutes. The laws require certain professionals with “reasonable cause to believe” or “reason to believe” that a child has been abused or neglected to report suspected abuse. Actual knowledge of abuse is not necessary. Once abuse is suspected, the report must be made immediately to designated child protection agency, department of welfare, or law enforcement unit, depending on the specifics of the law.

School teachers and administrators and staff at daycare centers, camps, and other entities are often the first line of defense against abuse of children. Lawsuits against schools and other entities often focus on inadequate policies, lack of appropriate training, poor investigative procedures, failure to report to the a child protective agency, and deliberate indifference to what officials knew or should have known. When any of these elements can be demonstrated, the institution may have difficulty defending its actions. On the other hand, if the school or other entity takes some important steps to protect children — and abuse nonetheless occurs — the defendant may be able to present a cogent argument that it met the professional standard of care and that failures to report or follow procedures were not a proximate cause of injury.

School Liability and High School Hazing

High School Hazing

Schools can be liable for high school hazing

School coaches have a duty to protect athletes from harm, including emotional or physical harm that may result from locker room hazing. High school hazing in athletics has many beginnings — the most prominent being an attitude of superiority among senior athletes and the belief that a weaker or younger athlete must be subjected to harassment to “make the grade” or to be “good enough” to be on the team. This mentality, if left unchecked and if students are allowed to participate in hazing behaviors, eventually can result in even more serious misconduct, such as sexual harassment and serious personal injury.

We often see the repercussions of hazing when it emerges from the locker room and finds its way into the courtroom. And it’s likely that courts will begin to see more hazing-related claims stemming from an alleged lack of appropriate student supervision.

Statutes and common law decisions reinforce the duty of school officials to exercise care to protect children from harm — a legally enforceable obligation for schools. Care is an element assessed when considering a complaint or defense involving negligence. Did the school, through its administration and/or other employees, act appropriately, reasonably, with care and within the professional standard under the circumstance? This duty refers to a responsibility to protect others from unreasonable risk of harm arising from inappropriate student interactions, including hazing. Exercising this duty begins with schools developing and implementing adequate policies against high school hazing, training coaches and students about those policies, promptly investigating complaints, appropriately supervising staff and students, and following through with consequences for violators. By doing this schools send a clear message to students and staff that hazing and other inappropriate behaviors are neither tolerated nor acceptable in school athletics.

 

High School Hazing is Harassment and Schools Can Be Liable

Recently in Sayreville, N.J., the superintendent ended the football season early in response to serious reports of locker room hazing at War Memorial High School that led to the arrests of seven student athletes and allegations of possible student-on-student sexual assault. In this case, a couple of legal repercussions will follow in response to the season’s cancellation. If a victim files a civil lawsuit against the school, the legal questions will likely examine whether hazing constitutes bullying (New Jersey’s Acting Commissioner of Education says it does) and whether the school appropriately trained its coaches to be aware of hazing and to take appropriate action to end it. Plaintiff’s attorneys may also argue negligent hiring, supervision and retention of the coaching staff, negligent supervision of students, and negligent infliction of emotional harm, among other claims. Defendant’s attorneys will likely argue that the school did everything properly in hiring and supervising coaches, that it developed and implemented appropriate policies, and that students were appropriately supervised during the time of the alleged incident. The answers will boil down to the school’s duty and whether it acted reasonably when training and supervising coaches and students, implementing its own policies, and complying with state law to protect student athletes and prevent a hostile environment from festering inside the locker room.

Schools’ perceived attitude toward the acceptance of hazing in athletics can result in costly litigation when student athletes suffer injuries inflicted by fellow students or even coaches. For example, in an Ohio case, a high school football player’s parents are suing over their teenager’s brain injuries, blaming his coaches for allegedly sanctioning a dangerous hazing ritual. According to the lawsuit, other students hit the victim as hard as they could, causing him to collapse later in the locker room — and no ambulance was called. The suit claims that the ritual required their son to take deliberate injury, in violation of his rights, and that the coaches acted under the government’s authority in ordering the intentional striking of the student. The suit also alleges that the school and coaches acted recklessly through complete failure to exercise any care to protect the student’s safety and were indifferent to the fact that his injury was a likely outcome of the violence directed toward him. Here, the plaintiff’s attorney will need to show that the state and school district had a policy defining the standard and that the school breached that standard, resulting in harm to the student. For its part, the school will need to demonstrate that policies and procedures were appropriate and reasonable, staff was hired and trained according to policy, if there was knowledge of the hazing, they took quick and appropriate action to end it.

 

Hazing Leads to Hostile School Environment

When the culture of  high school hazing becomes so accepted that even the athletes themselves may not recognize the need to report an injury, hazing, or harassing behaviors, the abuse is allowed to continue — undetected and untreated. This sad reality causes difficulty for the plaintiff’s attorney who wants to present a harassment claim alleging the school knew about inappropriate behaviors and acted deliberately indifferent to that behavior, resulting in harm to a student.

In a survey of American middle and high school students published in School Psychology International, 66 percent of bullying victims believed that school personnel responded poorly when they saw children being bullied. Kids who are bullied often don’t tell anyone, either because they think they won’t be believed or they fear retaliation. It’s not just targets of bullying and hazing who keep mum. Their peers do, too. Even though most students and athletes believe that hazing is wrong, witnesses rarely tell teachers and coaches, and they intervene only infrequently on the behalf of the child who is the target of the abuse. In fact, multiple studies suggest that only between 10 and 20 percent of noninvolved students provide any real help when another student is victimized. Student athletes worry that intervening will raise a bully’s wrath and make them the next target. They may also feel powerless to do anything about it; after all, they are peers — they are not the teacher or coach in charge of fellow students. So they tend to stand aside, watch the negative and often abusive behavior, feel confused about what to do, and internalize conflicting feelings and emotions. This raises the duty of school employees to educate and train students about hazing and how to report what they see, take time to observe and assess the environment, and take action whenever a situation might cause harm to a student — be it unsafe conditions on the playground or interactions among students in the locker room.

To promote a positive environment in locker rooms and to prevent high school hazing, it is important for schools to develop and implement an appropriate student code of conduct that includes athletes in the locker room and on the field. Hazing, specifically, must be prohibited, with strong consequences for violation. Teachers and coaches must be trained to take immediate and effective action to end hazing if it is reported or observed. Being able to demonstrate that the student code of conduct clearly addresses hazing and that teachers and coaches have been trained to take swift action will support a school in a lawsuit. School staff that consistently take immediate action and reinforce a positive school culture is the best deterrent to student harm — and the best defense in a lawsuit. Policies and training alone are not enough, however; if the school fails to show that it met its own standards, it will have difficulty defending itself against negligence and plaintiff’s attorney may be able to demonstrate that failure to act reinforced a culture of hazing that contributed to student harm.

As of the writing of this article the Middlesex County, N.J., prosecutor is conducting an investigation of the hazing and sexual abuse charges against the seven Sayreville football players; the school is waiting for the result before conducting its own investigation. There have been indications that parents will sue the school because it cancelled the football season, but these have yet to come forward. One player says he lost a college scholarship over the turn of events. Once the criminal part of the alleged harassment has been resolved, civil suits brought on by the victims will likely begin. Plaintiff and defendant attorneys should be prepared to address such issues as the coach’s duty to protect students, whether the school reasonably and appropriately trained its coaches to detect and act against hazing, whether the coach knew or should have known of hazing behavior, and what he or she did to end it — and whether any breach caused injury to the athlete.

 

Hazing and Title IX

Sayreville and similar high-profile incidents of high school hazing will likely bring many legal issues to the surface, including Title IX of the Education Amendments of 1972. When there are allegations or notice that locker room hazing involved sexual harassment, Title IX may be a viable avenue for a complaint and will complicate a review. Title IX imposes a duty on school officials to prevent sexual harassment in schools. According to U.S. Department of Education guidelines, sexual harassment occurs when a student experiences gender-based conduct by another student that is sufficiently severe, persistent, or pervasive that it limits a student’s ability to participate in or benefit from an educational program or activity. Sexual harassment also occurs when such activity creates a hostile or abusive educational environment. If a Title IX sexual harassment claim is attached to a claim of hazing, plaintiff and defendant attorneys will need to examine the type, frequency, and duration of the conduct; the number of individuals involved; and whether the victim suffered psychological distress — in addition to whether the school met its duty to exercise care and whether it followed its own policies and professional standards under the circumstances.

Applying and Piercing Governmental Immunity in School Liability Cases

Governmental Immunity in School Liability CasesWhen a student personal injury in a public school triggers litigation, plaintiff and defendant attorneys must address the concept of governmental immunity. In general, governmental immunity shields public schools from tort litigation and liability. Governmental immunity is not universally applicable, however, depending on how the facts of a specific case accord with state or provincial laws. This article is about how governmental immunity in public school cases might be pierced and how schools can determine whether governmental immunity applies in school liability cases.

 

In the United States, state laws vary considerably on the question of governmental immunity for tort liability. Common law has driven legislative initiatives, often in response to a trending issue, that strengthen or erode governmental immunity protection. In Canada, by contrast, tort liability of the government is relatively new and is statute-based. In Canada, the Crown Liability Act leaves the “Crown” liable in tort as an individual would be.

 

Variation in U.S. laws results in differing levels of school immunity from state to state. Eleven states[1] allow suits regarding nondiscretionary functions only; 39 states, including the District of Columbia, provide for discretionary action as an exception to the general rule of liability. Some states protect schools from liability for the tort of negligent hiring or retention of staff. Some permit suits only for personal injury or death or only for dangerous property conditions. A few states generally allow tort suits against teachers only for “willful and wanton” misconduct. Some states limit dollar amounts that may be collected.

School Liability Immunity in the context of Discretionary Judgment and Dangerous Conditions

Governmental immunity is the most frequent defense in tort cases. Before considering whether governmental immunity applies, the questions of school liability — such as duty of care, breach of duty, and proximate causation — should be addressed. Attorneys should carefully review and analyze the circumstances surrounding student injury leading to a tort claim. Consider two examples: a teacher who tutors a student alone in her classroom with the door closed and a teacher who continues to use equipment that has been recalled for safety reasons. The immediate relevant questions in both examples are: Did the school have actual notice, or should it have known, of a situation that a reasonable school administrator would agree could place a student in harm’s way? Under the circumstances, did the school act reasonably, appropriately, and within the professional standard of care to protect students from harm?

In the first example, if the school maintains a policy that no teacher is allowed to be alone with a student in a classroom, yet it is known that the teacher is tutoring a student one-on-one in her classroom behind a closed door, did the administrator follow up by correcting the teacher and noting the violation in her personnel file? In the second example, did the school continue to use a table saw with a missing blade guard, or did the teacher take it out of use and arrange for its repair? Ignoring red flags may lead to the potential for student sexual abuse in the first example and serious student personal injury in the second. In some states, governmental immunity may not apply to these examples.

Because negligent acts are often the result of discretionary judgment on the part of a school, the question of whether an act (or failure to act) was discretionary is of major importance in states granting school immunity for discretionary acts. Discretionary acts in school setting generally involve planning, goal setting, evaluation, and the exercise of judgment.

As an example, federal and state laws require schools to identify students with disabilities and engage in a process that leads to the development of an Individualized Education Program (IEP). An IEP is a written document that specifies “contractual” agreements about services to be provided to the student. For a student with a physical disability, one such provision might be an aide to help the student safely negotiate school hallways and protect her from injury on the playground. In one case, the aide did not show up for work on a day the student attempted to negotiate a crowded stairway. She fell and sustained an injury, causing permanent scarring to her face from lacerations. She sued the school, claiming negligent student supervision. The school invoked immunity, saying the act of providing the aide was discretionary. Determining whether this truly was a discretionary act, however, is the key as to whether immunity applies in this type of case.

As a school administration expert witness, when I review and analyze a case like this, I determine the professional standard of care under the circumstances and whether the school, through its administration and/or other employees, acted reasonably, appropriately, and met that standard. Was the requirement for an aide to assist the student reasonable and appropriate? The school had determined that the aide was necessary for the student to have safe access to her education. Does this place a nondiscretionary component into the analysis? If there is no discretion or flexibility when it comes to providing the aide, and on this day no aide was there, did the school breach a mandatory standard — perhaps removing the protection of governmental immunity?

In another example, a principal allegedly knew that a music teacher had sexually abused a student in an after-school program. Instead of taking appropriate action by reporting the incident to child protective services and separating the teacher from students, the principal simply transferred the teacher to another school. At the new school, the teacher continued his behavior with a different student until it was reported to police. It may be argued that the proximate cause of the second student’s sexual abuse was the principal’s gross negligence in his decision making.

In a state that allows level of negligence to determine whether governmental immunity can be invoked, the plaintiff may prevail. However, if there was no knowledge of the teacher’s behavior before his transfer, then the school would have had no duty to protect students from harm and would likely prevail under the doctrine of governmental immunity.

 

School Immunity and Premises Liability

A proximate cause of student injury in schools may be failure on the part of the administration or other employees who are charged with a ministerial duty. In contrast to discretionary acts, a ministerial duty is a responsibility to conform to federal, state, or local statutes or to policies and procedures a school has set. Determining the elements of a policy and enacting the policy may be discretionary acts, while the responsibility to carry them out is a ministerial school duty.

If a student is injured by equipment that violates safety standards or is not maintained according to the manufacturer’s specifications, courts must decide whether the general legislative policy of promoting student safety should prevail by imposing tort liability, or whether the doctrine of immunizing the school from exposure to tort suits should prevail. Many courts favor public policy governing safety and impose liability on school districts, thus piercing governmental immunity.

Some jurisdictions recognize claims of failure to keep school premises in a safe condition, permitting recovery from schools for maintaining a nuisance. Maintaining a nuisance seems to be recognized as an exception to the general rule of immunity. Some courts have determined that if school officials mismanage school property, they are liable for damages because of that mismanagement.

As an example, in the corner of a third-grade classroom, a teacher set up a “reading lounge.” During afternoon reading time, six children crowded into the area to see the new books the teacher put out. Three students sat together on a desk that collapsed, seriously injuring a child. The teacher knew the desk was broken and had reported it to the custodian, expecting that it would be taken from her room for repair. Yet she did not prevent students from continuing to use it, leading to injury. Did the school have a duty to take the desk out of service, foreseeing that a student could become injured if it remained in the classroom? If it can be shown the teacher acted grossly negligent by failing to assure the desk was repaired and that this was the proximate cause of the student’s injury, then in some states this may be considered “maintaining a nuisance” and the school may not be shielded by governmental immunity.

Playground injuries are often addressed in the context of governmental immunity. In one example, the playground in a school for students with disabilities was fenced. The latch on the fence gate had been broken for weeks, and though this had been reported to the principal when it first broke, no action was taken to repair it. A student left the playground through the defective gate, running into the street and being struck by a car resulting in a wrongful death claim. This school may not be able to stand behind governmental immunity if it can be successfully argued that the school had a ministerial duty to assure the gate operated correctly to protect students from harm. On the other hand, if the attorney for the school convinces a trier of fact that installing a fence with a gate in that location and repairing the gate is discretionary, the school may prevail.

Even if the school argues that these activities are discretionary, an expert witness working on a case like this would review and analyze issues, policies, and actions that may have been a proximate cause of injury to a student. As an example, if I were to render an opinion that, because of the level of disability students at this school, the administration had a higher-than-average duty to protect them from harm — coupled with the facts that the school board conducted a safety audit of the grounds, identified the necessity of a fence and gate to protect student safety, and enacted a well-understood policy that the gate remain closed when students are on the playground but the gate latch went unrepaired for weeks — I would likely determine that failure to repair the latch in a timely manner was neither reasonable nor a discretionary act, and therefore governmental immunity would not be applicable and school liability for student wrongful death would stand. The inoperable gate created a situation that otherwise would not have existed. By applying my experience and qualifications, I assess duty to protect, whether the school’s action or inaction was reasonable and appropriate, and whether it was a proximate cause of injury or death. A careful review and analysis of the facts from the perspective of a reasonable school administrator will help to determine if the school’s actions or inactions led to injury.

 

Summary

Because it varies significantly by state and its provision is influenced by individual circumstances, governmental immunity is something of an elusive standard. Assessing a public school’s duty to provide for the health, safety, and welfare of its students and determining how well it fulfilled or failed to fulfill that duty from the perspective of a reasonable school administrator provides the starting point for determining whether school immunity will prevail. This determination and analysis of applications of governmental immunity can either be used as a school defense against liability, or as a way of piercing governmental immunity by plaintiffs.

[1] Alabama, Arkansas, Colorado, Delaware, Georgia, Kentucky, Maine, Maryland, Missouri, New Hampshire, and New Mexico do not address discretionary actions as potential exceptions to governmental immunity in school liability cases.