September 23, 2017

Professional Standard of Care in the Field of School Administration and Student Supervision

professional standard of careParents are responsible for the protection and care of their children, and there may be legal consequences if a parent negligently fails to take reasonable steps to protect his or her child from harm. As with parents, entities and agencies charged with the care and supervision of children are responsible for the protection of their health, safety, and well-being. A partial list of such entities or programs include daycare centers, preschools, summer camps, YMCA centers, K–12 private and public schools, private schools that provide residences for students, and residential centers for adjudicated youth. When a child is placed into the care and custody of such an organization, that entity assumes control and supervision over the child comparable to parental care — and is held to even a higher professional standard of care established within the field of education.

If a child is injured and if it can be demonstrated that the entity responsible for supervision and care of the child failed to act appropriately and reasonably under a specific circumstance, it might be liable for such events as wrongful death, serious personal injury, or sexual assault. Once a child is under the care of professionals in such programs, specific legal standards and the professional standard of care become important factors in assessing whether the agency, through its administration and/or employees, met those standards and whether the breach of legal or professional standards may have contributed to harm.

 

Professional Standard of Care Defined

The professional standard of care is defined as the level and type of care that a reasonably competent and skilled professional, with a similar background and in the same setting, would have provided under the circumstances that led to the alleged injury. This is the watchfulness, attention, caution, and prudence that a reasonable person in the circumstance would exercise. If a person’s actions do not meet this standard, then his or her actions fail to meet the duty of care and, therefore, fall outside the professional standard of care.

In matters involving tort claims, the standard of care required when children are involved is for those in charge to act reasonably in view of the probability of injury to a child. The standard is not that of an insurer of safety but, rather, that reasonable precautions and responses are taken in light of the circumstances. Schools, day care centers, and camps have a responsibility to provide reasonably safe premises, considering the nature and conduct of children who will be using the facilities. However, when an agency is responsible for the safety of children, performing the standard of care expected of a prudent citizen or parent is not adequate; the standard of care in this instance is that of a reasonable and prudent professional. This means that a physical education teacher, for instance, would have to act as both an ordinary, reasonable person and as a reasonable and prudent physical education teacher. The standard of care is measured by the judgment, knowledge, experience, training, perception of risk, and skill that a person in the capacity of a professional would have. Often, the application of an expert’s education, training, and professional experience becomes the pivotal point to determine whether, in a particular circumstance, a teacher or other professional met the professional standard of care.

Failure to meet a standard in a particular field, such as education administration and supervision, is negligence, and any damages that result may be claimed in a lawsuit by the injured party. This encompasses both the legal and professional standards within a field. At times, the standard is often a subjective issue about which reasonable people can differ. Some professional standards of care in the field of education administration and supervision are clearly defined in law, such as in Title IX of the Education Amendments of 1972. Title IX requires every school district to identify a person who will act as a Title IX coordinator. If the school has not identified such a person, then it has not met the legal standard of care. In a different circumstance, there may not be a statute to define a legal standard of care but within the field, there is an acceptance of how things are typically done. For example, there may be no state regulation regarding the staff-to-student ratio when supervising students on a playground during recess. Some school districts have their own policies or rules about staffing and student supervision, but in their absence, local standards, common sense and good administrative practice prevail.

 

Failure to Apply the Professional Standard of Care Can Result in School Negligence

If a school administrator knows that a student is being harassed but doesn’t take immediate action to eliminate the harassment, prevent its recurrence, and address its effects, the administrator may be acting outside the professional standard of care. On the one hand, there is a legal standard that is articulated in Title IX — that immediate action be taken — but on the other hand, what within the professional field defines immediate? Is immediate within one hour, five hours, or three days? The answer — and what becomes the professional standard of care — depends upon the circumstances. Additionally, assessing whether the action taken was sufficient to eliminate the harassment does not fit neatly within the strict legal standard of care, but more appropriately fits in the professional standard of care. This must be determined within the specific context of an event.

For example, did a principal act within the professional standard of care when, upon being informed of sexual harassment of a student by a classmate, he waited until the next school day to address the report? This depends on the context of the situation and nuances that would be understood by an experienced education administrator. As an education administration and supervision expert witness, I utilize my education, training, and professional experience as a school administrator to review the allegation and the report, examine the circumstances from a school administrator’s point of view, and render an opinion as to what a reasonably competent and skilled professional would have done under the circumstances. Although the law may use the term “immediate” action or response, the context of the situation allows the expert witness to opine as to whether the administrator’s action or inaction met the professional standard of care.

Within the daycare industry, there are many legal standards that must be met in order for a school to obtain a state license. One example is that a specific child-to-adult ratio be maintained in the classroom and during recreational activities. However, once children are outside being supervised by the appropriate number of staff, judgements based on circumstances might need to be made: Should the child be restricted from play if he becomes overly aggressive? Should children be kept away from the grass that was just cut? Should a child be sent to the nurse because she complains of a headache? These are decisions that are made based on the professional standard of care. There may not be a defining legal standard or school policy restricting a child from playing with others. As the professional, the supervising staff member must make a decision based on the circumstances, the nature of the child, and any safety issues, such as the location. Overall, the person in charge must act as a prudent professional under the circumstance to protect the health and safety of the children in his or her charge.

 

Legal and Professional Standards of Care for Children with Disabilities

The most vulnerable children in a school are those with disabilities who, at times, may be unable to defend themselves. An important aspect of protecting children with disabilities is for a school to identify a child’s learning, emotional, and social abilities and develop an Individual Education Program (IEP) to protect the child from harm. There are legal and professional standards of care when a school is responsible for the protection of vulnerable children. The legal standard of care is that every public school district identify students who may be individuals with disabilities and who may benefit from special education and related services. Once a child has been identified as in need of specialized services, then the school, as a matter of the professional standard of care, should determine what services (such as an aide) would be needed to keep the child safe. If a student was neither identified as an individual with a disability nor provided with an IEP and then engaged in sexual behaviors with peers, it might be relevant that the district did not identify this student as one who was having social or emotional issues that negatively affected his or her education. If the student was not identified as one who could benefit from special education but should have been, there may be an argument for the district having breached the legal standard of care — that is, for not developing an IEP, a behavioral plan, and a safety plan for the student. In this example, the professional standard of care may focus on earlier behaviors noted by teachers and whether a teacher who had this knowledge sought to have the student evaluated in order to develop an IEP. Whenever the legal and professional standards of care are examined in a situation involving a student with a disability, it is important to engage the services of an expert witness with experience in the special education field.

When professionals take over for parents in schools, daycare centers, camps, and other organizations they have a responsibility to protect those children and act the way a reasonable parent would act. But this alone is not enough. They also are responsible for providing the care expected of a professional person in the field of child supervision.

Student Sports Injury and School Liability

Sports Injury Liability

Nationwide, 7.6 million students participate in interscholastic athletics, according to U.S. News and World Report. Keeping them safe is critically important to avoid school liability and sports injury lawsuits. And when sports injury occurs, schools may be found responsible if they failed to take reasonable precautions and supervision of students in order to prevent sports injury. Parents send their children to school with the implicit expectation that schools will do whatever is necessary to keep them safe whether in the classroom or on the football field.

Although there is inherent risk in athletic competition, parents rightly expect that coaches will take reasonable and proactive measures to protect student athletes from harm. In the vast majority of cases, coaches do exercise prudent judgment and care. Sometimes, though, coaches are careless or deliberately indifferent, thereby jeopardizing the health and safety of the athletes under their care. Many states have very strict immunity laws protecting schools and coaches for acts of negligence. However, a careful analysis of the actions and inactions taken by coaches that caused injury to an athlete can be introduced by a plaintiff in order to overcome immunity claims by schools.  

 

Policies and Training of Coaching Staff are Key to Preventing Athletic Injury

As expert witnesses, we have encountered many cases in which students suffered physical or emotional sports injuries during their involvement in school athletics. Examples include instances of bullying, hazing, and sexual harassment on buses to and from interscholastic events while coaches were not paying attention. Other examples involve inappropriate behavior, physical assaults, fights, and initiation of younger team players while the coach was in his office with the door closed. Often, such behavior is excused as “boys being boys” or “kids being kids.”

A variety of circumstances on or off the field could potentially lead to personal injury of students. Unstructured practice time, unsafe premises, faulty athletic equipment, failure to follow established school policies, lack of policies, inappropriate and abusive behavior of coaches, and tolerance of such behavior are just a few examples.  Any of these circumstances may place students in situations where they can suffer sports injury, leaving schools liable for those injuries.

To avoid such situations, a school would be wise to begin with a two-step approach. The first is to develop policies that explicitly prohibit hazing and require that coaches, teachers, and anyone else in a supervisory capacity exercise proper care of students. Proper care involves appropriately supervising athletes, ensuring safe facilities, following state guidelines for interscholastic athletics, and directing students to appropriate medical care, if needed. The second step is to ensure that those responsible for carrying out those policies understand them and follow through on procedures for their implementation. It is prudent, for instance, for the athletic director to hold a preseason meeting with coaches before the start of fall, winter, and spring sports or any sports camps to advise coaches of their responsibilities. Parents and students should be invited to those meetings so that they also know the standard of care that coaches are expected to uphold and, if necessary, share their concerns with the athletic director.

 

School Liability for Unsafe School Premises and Defective Athletic Equipment

Because schools have a duty to provide safe facilities and grounds, they should periodically inspect locations where student activities are taking place. Failure to inspect school premises may be grounds for school liability. In one case in which our firm was engaged for expert witness services, a soccer player incurred serious injury during practice on the school athletic field. On several occasions, the coach and others reported to school officials that there were holes or deep depressions on the field, making the field uneven and potentially dangerous. The school did not fix the reported problem and, during practice, a student stepped into a deep depression, permanently injuring her ankle. In such situations, the school are negligent and often have actual knowledge of the dangerous conditions and deliberately ignores the notice, resulting in student sports injury.

In another case, during a softball game the center fielder’s face became stuck to the wooden outfield fence when she attempted to field a ball. As her face brushed up against the fence, a large sliver of wood entered her check, pinning her to the fence until someone came to dislodge her. Such personal injuries may be avoidable if playing facilities are regularly inspected. Upon inspection, unsafe conditions on athletic fields, gymnasiums, and related facilities must be promptly alleviated. Records of such inspections should be kept to ensure that inspections actually occur and to protect the district from a claim of an unsafe condition and school liability.

In certain situations, a school may not be responsible for the condition of its premises and the safety of others. In a 1984 case, (Begin v. Georgia Championship Wrestling, Inc., 172 Ga. App. 293, 322 S.E. 2d 737) a spectator at a wrestling exhibition was injured when her foot got stuck between two seams of plastic covering the gymnasium floor. The three-foot wide plastic strips had been placed around the wrestling ring by the school where the event was being held. The plaintiff sued the promoter of the event and not the school where it was held. The court clarified that, although the school was the sponsor of the event and employees placed the covering on the floor, the plaintiff was an invitee of Georgia Championship Wrestling, Inc., the promoter. The promoter was the occupier of the premises and, as such, is charged with the duty of keeping the premises safe for invitees even though the activity was held in the school gymnasium. An occupier of premises is under duty to inspect the premises to discover possible dangerous conditions  of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. (Prosser, Law of Torts (4th ed.) 393, 61)  

 

Coaches Should Exercise Reasonable Standard of Care to Prevent Student Sports Injury

To protect athletes, coaches should be proactive and consider everything they can do to prevent foreseeable athletic injuries. Participants in interscholastic athletics are students first and athletes second. As such, coaches are in the position of providing, at a minimum, “parental control” and must exercise judgment that a “reasonably prudent adult” would take to ensure the safety of students. That means for example, creating practice and game conditions that are safe, such as pitting athletes of equal (rather than unequal) ability against each other and modeling sportsmanship and ethical behavior.

Sometimes, coaches may be inclined to push athletes into a game situation for the sake of a win. Instead, coaches should have the attitude that the safety of student athletes is more important than wins. They should follow guidelines prescribed by their State Athletic Association regarding concussions or drink breaks, for instance. All reports of injuries should be taken seriously and medical attention provided, even if only precautionary. Many high schools today have athletic trainers available at practices, but some have trainers only at games or not at all.

The same attitude of injury prevention applies to physical education classes. Physical education teachers should routinely monitor and ensure the safety of physical education facilities and equipment. They should take all claims of injuries seriously and have students examined by the school nurse if they claim to be hurt. In our experience, many tragic injuries — and even death — have resulted from dismissing a student’s initial complaint as inconsequential.

Coaches should supervise athletes at all times — while they are in the locker room before and after practice, waiting to be picked up after practice, and any time they are on school grounds. Students are far less likely to do something inappropriate if they are properly supervised and if they know that certain behaviors are not tolerated. When coaches fail to supervise and a student is injured, the school may be held liable.

 

Schools Should Continually Monitor Athletics to Minimize Sports Injury

Finally, school administrators should ensure that coaches and physical education teachers conscientiously carry out their responsibilities. When everyone does their part, the school may avoid liability claims and costly litigation. But absence of claims is not the goal; ensuring the health and safety of student athletes is the goal. If safe conditions are in place, if coaches and physical education teachers supervise students appropriately, and if they respond to injuries quickly, then the likelihood of student athletes becoming injured will be greatly decreased — and students, parents, and the school will all benefit.

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.

School Premises Liability: Maintaining School Grounds to Keep Students Safe

Keeping children safe in schools, preschool and daycare programs, summer camps, on playgrounds, and other locations is a primary responsibility of those who administer such programs. When a child becomes injured and the claim is negligent supervision, a school or other agency will have a greater chance of prevailing when it has clear policies and enforces them. In school premises liability lawsuits plaintiffs are more likely to prevail when a facility fails to maintain its campus and equipment, does not have a regular inspection plan, and does not instruct and supervise students in the safe and appropriate use of equipment. The greatest deterrent to litigation with respect to premises and equipment liability is to keep the building and grounds free from hazards, maintain them on a regular basis, and ensure that that equipment is safe and properly installed, used, and maintained.

School Policies and School Premises Liability

In-house policies become the standard by which schools and other agencies assure the health, safety, and wellbeing of children. These policies mirror professional standards of care in the field as well as federal, state, and local standards. Development and implementation of policies that address circumstances that may give rise to a child’s injury are important components of a defense against school premises liability. Equally important, these policies should be enforced.

For example, electronic equipment in a classroom is often plugged into power strips. Young children are curious. They like to explore how things work. Children have been shocked when a staff member did not cover unused outlets on a strip. Even if the administration has no knowledge of a teacher using a power strip, a policy prohibiting their use without the express permission of the administration gives the administration control. If a teacher ignores the policy, uses a power strip in the classroom, and a child is injured by it, the school might argue that it had the appropriate policy but the teacher failed to follow it.

The existence of a policy alone, and even communicating it to staff, however, might not be enough to persuade a jury that the school had done all it could to prevent injury. The plaintiff might be able to demonstrate that the policy stated that regular inspections would take place during the school year but, in this case, none were completed. The question might then arise: Had inspections been conducted as required by policy, and had the power strip been removed from the classroom in an inspection, would the child have been injured? Having a written policy without enforcing it will not strengthen a defendant’s position.

Maintaining School Grounds to Avoid School Premises Liability Lawsuits

When a child is injured after falling 10 feet from a playground slide to the unpadded ground below, the injured party may claim that the school or camp failed to maintain safe premises or breached a safety standard. Did the school allow the play area to become unsafe by not replacing a shock-absorbing surface that washed away over time? This is an example of a maintenance issue that required attention, lead to an injury and left the school vulnerable to potential school premises liability lawsuits. Defective equipment and unsafe premises cause untold litigation expenses in the United States and Canada.

When children are involved, a majority of defective-equipment allegations involve playground equipment. In a case of a 4-year-old who badly mangled his finger on a merry-go-round (Fetters v. City of Des Moines), the plaintiff alleged that the merry-go-round was defective because of improper maintenance. In another case involving negligent maintenance (Rich v. City of Goldsboro), the plaintiff was thrown from a see-saw that was worn and wobbly and that lacked handholds or stabilizing devices. In fact, nearly every time a plaintiff’s allegation of defective equipment prevails, the proximate cause is failure to adequately maintain equipment.

An inspection system is the most important component of maintaining safe premises and for managing risk. Inspections play an important role in the discovery of conditions, and “notice” is an important legal concept regarding liability for conditions of premises. Notice is information — knowledge of the existence of a situation. For example, if the head custodian learned of a missing end cap on a slide, then he or she is held to have notice of the condition.

Whenever children are around equipment of any kind — a slide on the playground, a table saw in shop class, folding tables in a cafeteria, or a pair of scissors in art class — teachers, camp counselors, and program administrators, as well as custodians and bus drivers, have a duty to ensure that equipment is always in top condition, maintained regularly, or taken out of service when in need of repair. A teacher’s job description may include a requirement to inspect and maintain equipment in the classroom on a regular basis. This requirement becomes a professional standard of care in that school — and one that can be referred to in litigation.

In a real case involving a student and a table saw, the woodshop teacher knew that a bolt was missing from the saw blade guard. Rather than referring to the manufacturer’s requirements for a replacement, he rooted through a drawer in the shop, found a bolt he assumed would hold the guard to the saw table, and replaced it. Later, when a student was using the saw, the bolt came loose, the guard jammed, and the student lost three fingers. After thousands of dollars’ worth of surgery, the student filed a lawsuit against the school and the teacher.

Did the teacher adhere to the professional standard of care? Or was the standard breached when he failed to maintain the saw, as required by his job description? Did he breach the professional standard of care when he used a bolt not approved by the manufacturer? In this situation, the teacher ignored the standard outlined in his job description and deliberately used a bolt not recommended by the manufacturer. The saw should have been taken out of service until it was properly repaired. If this school premises liability case had not settled, the school would have had to persuade a jury that even though the saw was not maintained properly and the teacher used the wrong bolt, the student was at fault. It’s unlikely a jury would have agreed.

Negligent Supervision of Students

Folding cafeteria tables that are improperly stowed, TVs atop carts incapable of supporting them, and chemicals left in reach of students all place children in harm’s way, with the foreseeability that someone could become injured. Staff must constantly supervise the premises and the use of equipment. Knowing what to be aware of in environments inhabited by children and how to safeguard children in those environments are among most important responsibilities of adults who are ultimately responsible for children’s safety.

When a potentially dangerous situation is identified, there are several alternatives:

  • Discontinue the activity. Do not allow activity in an area where children would be exposed to the danger
  • Modify the activity. Adjust the manner of play to avoid contact with the defect
  • Temporarily repair the defect and continue the activity with care. For example, a hole in a floorboard might have a temporary covering in order to protect students from injury on the spot. This may be fine in the moment, as long as students are carefully supervised, but after the activity is over, the temporary floor covering should not be left in place and considered a “fix.” Once a supervisor or administrator has notice of the hole and the temporary fix action to correct the hazard must be taken. Inaction is itself an act that can enhance the likelihood of injury for which the person is personally liable.

The court has established two types of torts: manufacture of defective products and the use of products. With respect to the latter, a suit can be brought on negligence if the user of a product is injured, regardless of whether the product has been associated with liability claims. Consider a TV cart that had been labeled dangerous by the Consumer Product Safety Commission: Its design caused it to tip over easily, but no product liability claims had been filed against the manufacturer. In one real case, a third-grade teacher instructed two students to return a TV on top of this cart to a hall closet. Being third graders, one child pushed the cart from the back while the other rode up front, placing his feet on the bottom shelf and holding onto both sides. When the child pushing the cart let go of it, the cart tipped in the direction of the student hanging off the front and the 55-pound TV struck the other student in front in the head, causing permanent injury.

A claim of negligent supervision was filed against the teacher, the principal, and the board of education. The question became: Was it appropriate and reasonable for the teacher to send the two boys, unsupervised, into the hallway to return the TV? Information the teacher knew about one of the students became another factor in this case: The boy had behavior problems and been corrected on numerous occasions. Did the teacher breach a professional standard of care by sending these students, one of whom she knew was likely to misbehave in the hallway, to take the TV to the closet?

When children are engaged in activities under supervision, the school or other agency has the responsibility for ensuring that equipment is appropriate for the child’s age, size, skill level, and general capacity, as well as how it will be used. There is also a duty to instruct the child in its proper use and dangers of misuse, and to monitor for proper use. The person instructing the child must also be alert to defective equipment. The school district has the authority to purchase and furnish equipment, but teachers have the responsibility for proper selection, inspection, and use of equipment. Legally, this is important, because if equipment is used for a purpose not in accord with its instruction, product liability is not at issue. Moreover, an injured child does not assume any risks if the equipment used is defective or improper for the activity. An improper type of jump rope, for instance, was alleged to be the cause of injury in a physical education class when an 8-year-old was injured. The 6-foot rope had wooden handles, one of which hit a student in the teeth when it was jerked from a teacher’s hand. In this case, the defendant prevailed.

Conclusion

Schools, their administration, and staff, along with adults who administer preschools daycare centers, summer camps, and similar programs have a responsibility to protect children in their care from harm in order to avoid school premises liability lawsuits and negligent supervision of students claims. Policies that set standards for ensuring safety and maintaining the building, grounds, and equipment are a start, but those policies must be enforced and students appropriately supervised during activities, especially ones including specific equipment. Negligent maintenance and failure to supervise children in the proper use of equipment are common reasons policies fail and can lead to conditions that give rise to student injury and school liability lawsuits. School and agencies should take every reasonable step to avoid these potentially costly traps.

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.