November 23, 2017

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.

Violation of Right to Bodily Security and Student Injury at School Resulting from Seclusion and Restraint

injury from restraints at school

Liability for Student Injuries at School

The first responsibility of educators and those who supervise children in residential programs, day care centers, before- and after-school programs, and other settings is to make sure that these programs foster learning and care in a safe environment. Asking third graders to move a cart with a heavy TV on top, inadequate staff instruction in safe techniques to quell disruptive students, not carefully checking that the door to the pool closes and locks the way it is supposed to, excessive discipline, playground aides talking among themselves but failing to pay attention to the children, not providing a sufficient number of nighttime supervisors in a dormitory, and a school police officer not trained on how to interact with children with behavioral disorders — any of these circumstances can lead to student injury at school or death of a child and high litigation costs. The overriding professional standard of care is to protect children’s health, safety, and well-being. Under this umbrella fall the development and implementation of policies, adequate staff training, and a level of supervision reasonably calculated to keep children safe.

Children in public and private schools and residential programs can be subjected to harm by the very adults charged with protecting them. Preventing this from occurring requires getting to know a student, his or her emotional status, and what circumstances might trigger certain behaviors. For example, a child who has an Individualized Education Program (IEP) is recognized as someone who needs special accommodations. The IEP must be adequately developed and then implemented by all staff who come in contact with the student, including teachers and classroom assistants, bus drivers, cafeteria staff, school police, and custodians. When staff is neither informed about a student with special needs nor trained in techniques for de-escalating combative behavior, the stage is set for disaster. And if results are student injury at school, the school can be held liable.

Understanding the child’s abilities and limitations, knowing how to interact positively with the child, establishing clear policies, consistently following the rules, and adequately training staff will go a long way toward avoiding interactions that end up resulting in student injury at school.

Student Injury at School and Failure to Meet Standards of Care

Let’s look at some examples from my own work as an expert witness on standards of care in schools and residential facilities. In California, a child who had autism and mild mental retardation was forcibly restrained by as many as four people who held her at her classroom desk while forcing her to color a sheet of paper for one to two hours. She was also placed in a locked seclusion room for as many as five hours a day, during which she experienced severe duress and wet herself. She was told she could not change her clothes until she finished her time out and then finished the work she had refused. Even when time out was over, the child was kept in the seclusion room because it was designated as her classroom by the school. This case was litigated before a hearing officer and a court, with both holding that the school had violated her rights.

In this case, the school had a duty to develop an IEP that was reasonably calculated to help this student benefit from her education and to deal with any behavior or disability issues that could prevent her from learning. If she was being forced to color and was locked in seclusion for hours, she was not benefiting from her education. The school breached the professional standard of care that requires it to revise the IEP if it is not working. Any time a student must be overly disciplined, the IEP and any behavior plan are not working. In this example, the school failed to assess the child’s placement in an adequate way; failed to conduct a behavioral assessment to determine why the student was behaving the way she did; failed to develop a plan to de-escalate her behavior; and failed to train staff how to intervene appropriately to protect her from harm. In my opinion, the combination of these failures led to the physical restraint of the student, her placement in a seclusion room, and psychological, emotional, and educational harm.

In another example, a school resource officer in New Jersey shot a child numerous times when the student allegedly acted aggressively toward him. No one had told the officer that the student, who was in a special education program at a public school, had a disability that manifested as aggressive tendencies, nor did the school train the officer in how to de-escalate aggressive behavior of this student or others with similar behaviors. The student was carrying a knife. The officer ordered him to put it down several times, and when he did not, the officer fired his semi-automatic pistol at the boy nine times. The police department that hired the officer and placed him in the school in collaboration with the board of education investigated. Ultimately, it determined that the officer had acted properly and according to police protocol under the circumstance.

This example brings into focus the role of police and school resource officers. Many schools either directly employ police officers or have agreements with police departments to allow officers in the school to work alongside staff. These arrangements are generally positive. Officers on campus are able to observe students in the context of the school and get to know them, as well as interact with them in the community after school, which can strengthen community/police relations.

In schools, the key to effective police work is training. Officers who interact with students must understand the school behavior code, information about specific children who need special supervision, and the developmental stages of children. Many seventh and eighth grade children, for instance, are developing social maturity — and they don’t always think before acting. High school students, on the other hand, can be quite mature and may have other goals when interacting with one other. More importantly, students with disabilities may need to be communicated with in a different way than non-disabled students and might react unpredictably if they are frustrated or perceive that they are being bullied.

The police officer who emptied his weapon at this student had seen the student around the school but had no idea about his disability. He was never informed that under some circumstances, this student was capable of becoming aggressive — not because of his nature but because of an emotional immaturity that caused him to act before thinking. School staff understood how to de-escalate this student’s behavior when he began to show signs of frustration or anxiety, and they had been successful at protecting him and other students in such circumstances. The professional standard of care requires that all school personnel who are likely to encounter the student’s behavior be trained in how to deal with it by de-escalating the situation. The school resource officer was not trained to deal with the student in this way, however. His only training was from the police department: If a person coming at you with a weapon does not follow a command to drop the weapon, you may protect yourself with deadly force. Police are trained to focus on crime, and when a school does not adequately train a school resource officer to deal with students who have behavioral issues, a child can be harmed.

In another case for which I was the designated education administration and supervision expert witness, a judge ordered a school district to place a teenage student in a residential school that specialized in services for severely emotionally disturbed children. The school disagreed with the order but was obliged to comply. On the student’s second day at this facility, he ignored a staff person’s directive. Interaction between the student and the staff member escalated to the point where the staff person forcibly “placed” the student on the floor and sat on his back to restrain him. When the student struggled violently, the 200-pound male staff member pressed harder with his body to keep the student in place. Eventually, the student stopped struggling. He was dead when the EMTs arrived. The staff member was fired.

This case was complicated because the state, through the administrative law judge, ordered placement at the residential facility. The state was immune to a lawsuit, leaving the public school, the facility, the staff member, and his supervisors as defendants. The public school did not agree with the placement but complied under a legal order. The questions in this matter, then, were whether the residential facility met the professional standard of care and whether it acted appropriately and reasonably under the circumstance to protect the safety, health and well-being of the plaintiff.

My analysis of the facts led me to the opinion that the facility was negligent in its training. The school created a situation that otherwise would not have existed had the staff member been adequately trained and supervised. The staff member was minimally trained but no one assessed his ability to restrain a student in a safe manner. This was the first time the staff member had restrained a student in this manner. According to witnesses, the staff member did not attempt to de-escalate the situation — as is recommended by most accepted training in the use of physical restraint — before applying the deadly restraint. In my opinion, the staff member did not exercise reasonable care when it was quite apparent that disastrous injury could result from his action. His failure to de-escalate the confrontation and, in my opinion, failure to exercise care that even a careless person would use amounted to reckless disregard of the consequences of sitting on a student’s back. It is likely that the trier of fact in such a lawsuit would determine this behavior gross negligence. My expert opinion was that the school’s failure to provide adequate training was a proximate cause of this child’s wrongful death.

Student Rights to Bodily Security

Schools and other programs responsible for children can misuse punishment, and the effects of that misuse can cause years of damage to a child. Any new teacher, camp counselor, or child care worker knows that teaching children appropriate behavior is important for their own safety. What I learned as a teacher and school administrator is that establishing a mutual sense of respect is the first step on that path. Without question, everyone needs to know how to get along with others and to interact in a socially appropriate manner. However, one must be extremely careful when using punishment to change behavior — especially the behavior of an often temperamental or non-communicative child with a disability. Ill-timed, vengeful, and capricious punishment without incentives only creates a negative template for children to follow. Punishment that places kids in isolation only provokes counter aggression. When teachers deal with a student’s frustration or misbehavior by putting him in isolation, it is likely that the student would respond by expressing aggression through screaming, disrobing, soiling himself and, in some cases, hurting himself. Because of their disability, some students are unable to express themselves verbally, so they express their frustration the only way they were taught — through aggression.

When a child is restrained or forcefully taken to a time-out room, slammed into a chair, and yelled at to “sit still,” or encounters a teacher who slaps, pinches, or spanks her, her constitutional right to bodily security has been breached. The right to security of one’s person and body is generally protected when there is no justification for physical contact. This does not prohibit physical contact that is justified by a need to protect others or school property or to maintain order, and when the manner and degree of authorized physical force or restraint is reasonable. While some incidents of student abuse give rise to multiple constitutional, statutory, and common law claims of injury to bodily security, those sources create different standards of student rights and school district liability. Title IX indirectly supports the view that sexual abuse of students is a serious invasion of a constitutional civil right.

Student suicides and sexual abuse of students have brought to light another theory of constitutional right, namely that public schools, as state-created, state-operated institutions with full, though temporary, control and custody of their students, have a “special relationship” with an affirmative constitutional duty to protect students from harm which includes student injury at school. It is easier to prove a violation of this duty than to prove that a school was grossly negligent or deliberately indifferent to student harm. Students injured at school by school employees while in the custody of the school may argue that their public school relationship is more like the situation of a prison, where inmates are substantially required to be there and controlled by the state. However, in public schools, the duty-to-protect argument is open to further clarification and case development and is often the subject of many lawsuits against schools and other programs in charge of caring for children. In two federal cases (Walton v. Alexander [1994] and Pagano v Massapequa Public Schools [1989]), for instance, courts have issued contradictory opinions on the circumstances around which a “special relationship” exists.

Duty to protect is often the subject of cases involving wrongful death and serious student injury at school. The concept of constitutional breach of protecting children and their bodily integrity may be argued in such cases. To mount a strong defense against such a claim, the school or agency must show it had and implemented, at the time of the alleged injury, clear and concise policies, a comprehensive training program, and diligent supervision that assured that through its administration and/or other employees, the school or agency is protecting the health, safety, and well-being of children.

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.

School Liability for Student Field Trip Injuries or Death

field trip injuries

Adequate supervision is essential for prevention of field trip injuries.

For schools, summer camps, and day care centers, one of the key functions of student supervision is to identify dangerous conditions and then either stop the activity or warn of the danger. The supervisor must take appropriate action for the protection of the children. Duty to warn contemplates both having knowledge of danger (actual or constructive notice) and having time to communicate it.  Field trip injuries are very common and there is an equal duty to protect when children are off campus but still under school supervision, such as when children are on a school-sponsored trip. Excursions off school property present special challenges. Careful planning ahead of the trip, knowing about potential safety hazards, and creating a plan to avoid or mitigate them can help to protect a child from field trip injuries and a school from liability lawsuits.

The best defense against a claim of negligence is that has one or more of the four elements of negligence has not been proven: that a duty was not owed the injured, that reasonable care was exercised in performance of the act, that the act was not the proximate cause of the injury, or that there was no injury to the plaintiff. There will be times that the school will have done everything appropriate but a child still is injured. If the school can show that it exercised reasonable care, it will go a long way toward protecting the school from a lawsuit.

 

Adequate Planning is Essential  to Minimizing Risk of Field Trip Injuries

Being alert to potentially dangerous conditions at an offsite activity starts long before the activity itself. If a trip is planned for a picnic at a local park, for instance, the teacher or administrator should visit the park ahead of time to learn the layout and identify potential dangers on the property that may lead to field trip injuries. Are there any streams a child can fall into? Are there rough trails with loose rocks and tree trunks that can cause a child to trip? Is there a highway nearby that poses a risk to a child who wanders off from the group?

Informing the chaperones and children of the terrain, the hazards, and the safety rules ahead of time is most important. In providing written rules for the children, parents, and chaperones, a school articulates its policy and the behavior it expects from adult and child participants in order to protect students from field trip injuries. Through this type of planning and communication, the school creates a foundation for protecting it from liability should something go wrong.

It also is important to ensure that there are enough adults to provide adequate supervision at the event. In thinking about how many adults are needed, consider how many children will attend, their ages, and whether they have any disabilities or behavioral issues requiring special attention. A higher duty of care exists for a student with a disability or when a child’s Individual Education Program (IEP) requires specific attention to details to keep the student safe.  If a student requires a one-on-one aide at school for additional supervision, the same requirement extends for fieldtrips and other activities to minimize risk of field trip injuries.

 

Negligent Supervision of Students on School Field Trips

One of the cardinal rules of supervision on school field trips is to ensure that children do not leave sight of chaperones. The question of liability for injuries when children leave adult supervision without permission presents two factors. First, was there negligence in supervision on site that permitted the child to leave? If so, then that breach of duty would be the proximate cause of the injury. Second, was that type of injury foreseeable? If so, then failure to supervise a child in a way that could have prevented the injury would be negligence. For the school to be held open to liability, there must be proof that lack of supervision or that negligent supervision was a proximate cause of the accident.

Individuals who perform supervisory functions must conduct themselves as a reasonable person would under similar circumstances. Inappropriate behavior on the part of the supervisor may lead not only to a negligence suit in the case of student field trip injuries or death, but also to disciplinary action against the supervisor. As an example, in a Missouri case, two coaches took six high school boys and four female cheerleaders to a meet, where they stayed overnight. Evidence indicated that the coaches left the students unsupervised and the coaches attended a party and drank alcoholic beverages, and had allowed male and female students to sleep in the same rooms. The coaches were found to have engaged in inappropriate conduct when they abandoned the students and went partying and drinking. The court found that this behavior rendered them unfit to teach or supervise students.

Special attention must be given to the planning of off-campus trips with young children. In one such case, a kindergarten teacher planned a “safety day” class trip to a city-owned parking lot. The teacher planned this event in the same way she had for years, following board of education policies and seeking parent volunteers. Parents and children met at the school and rode with the teacher on a bus to the event. Just before arrival at the event, the teacher addressed the chaperones and said, “Please keep an eye on the children. We don’t want anyone to get lost.” What she did not do — and this turned out to be the proximate cause of a student’s death — was to assign specific students to each volunteer in order to prevent the risk of student field trip injuries.

At the event, the fire company brought a fire truck, the rescue squad brought an ambulance, and the police department set up “roads” with stop signs and walkways for children to practice safe street crossing. The police brought several electric golf carts to use as “cars” to make the scene as realistic as possible. After police officers finished conducting their demonstration of safe street crossing, three children climbed onto a golf cart, one hanging onto the front of the cart. An officer had left the cart idling, key still in the ignition. The cart drove straight ahead into the ambulance, crushing and instantly killing the child hanging on the front. Because several entities were involved in the event — the school, teacher, principal, volunteer chaperones, the police and fire departments, the EMT staff, and the municipal government that provided the parking lot, assignment of liability would likely be shared. The school, however, through the teacher who organized the event, was ultimately responsible for acting within the professional standard of care for supervision of children. Had chaperones been directed to supervise specific students at all times, it is likely that when the students climbed onto the golf cart, their chaperones would have stopped them.

Cases involving class trips can become quite complex when several agencies are involved. In a drowning case, a school had selected students to attend a leadership training program off campus. The school rented a nearby YMCA campsite that had several buildings suitable for overnight guests. There was also a third agency, the company providing the training program.

In this case, several students left the dormitory in the middle of the night, went to a nearby riverbank and took several boats into the river, even though signs strictly prohibited anyone from going into the water. When several students drowned, each of the three entities and many individuals became defendants. Sorting out supervisory responsibilities between the school, the training agency and the YMCA, assessing the capacity of the students to watch out for their own safety, and many additional elements became important when determining foreseeability, responsibility for supervision, proximate cause, and liability. In this case, proximate causation was determined through an assessment of whether the students’ misconduct would likely have been prevented had the duty to supervise been discharged.

 

Contributory Negligence for Student Field Trip Injuries

Questions of liability may arise from any number of unforeseen situations. Who bears the burden of liability when a student on a daytrip rents a bicycle, fails to wear a helmet, and sustains a head injury when he runs into a tree? What is the school’s liability if a child runs ahead of her group onto a highway, only to be seriously injured by a passing car? When a child’s own actions contribute in whole or part to wrongful death or serious injury, such circumstances can be a defense in certain situations.

As a court stated, a determination of contributory negligence involves several considerations:

  • Characteristics of the child (e.g., age, intelligence, experience, knowledge, or physical condition) that would influence her ability to detect dangerous conditions or appreciate the danger of a hazard observed
  • Physical facts, i.e., the extent to which the hazard is noticeable and the degree of alertness required to avoid such a hazard
  • The environment, be it the physical activities of the individual who was injured or killed or the movement, sound, or placement of other persons and objects in the setting.

For example, in the river drowning case described earlier, the question of contributory negligence was raised because the students who drowned were 17 and 18 years old, were determined to be intelligent because they had been selected for leadership training, were physically fit, and had the ability to detect the dangerous conditions of the river. A sign prohibiting swimming was clearly visible to a reasonable person, and there were no distractions at the scene that would have caused either of the students to lose concentration or momentarily forget that entering the river presented a danger of harm.

 

Summary

Supervision of children on the premises of a school, camp, or other entity is essential for protecting the health, safety and well-being of participants. Supervision of children at school-sponsored trips presents unique challenges and must be addressed in a different way. This is especially true when a group is planning to go to a place that is unfamiliar and may present challenges and dangers not typically considered.

Start with a clear, strong policy requiring administrative approval and a plan for the trip that includes safety and emergency responses. Consider how many children will attend, their ages, and how many adults are needed to supervise the children and protect them from harm. If the area is unfamiliar, the person in charge should visit in advance, making note of potential hazards and developing a plan to protect children from those hazards. Chaperones must know as much as possible about where the group is going, the potential hazards, who the children are and whether any have a particular disability, behavior problem or other characteristic requiring special attention, and which children are under their responsibility during the trip.

As an expert witness providing services for plaintiff and defendant attorneys on issues of negligent supervision and liability, I review the policies of schools and other entities and compare them against the facts of the case. This process provides insight as to whether the entity met its own standards by following its policies and whether contributory negligence was involved, leading us toward answers about questions of liability. When the facts are clear, an opinion may be rendered as to whether the entity acted appropriately and reasonably under the circumstances and within the professional standard of care.

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.

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.

Child Injury and Daycare Negligence: Liability Expert’s Analysis

Daycare Negligence Expert

Daycare accidents and injuries are preventable with proper supervision, regular inspections and adequate training.

Millions of children participate in programs operated by daycare centers, nursery schools, and camps across the United States and Canada. The most important aspect of childcare is the safety and supervision of children. When a teacher, recreation leader, camp counselor, or other supervisor is engaged in activities involving young children, there is a duty to protect the child from physical harm, sexual abuse, and other forms of personal injury. A breach of duty to protect the health, safety, and welfare of a child that leads to injury may result in daycare negligence lawsuits.

As an example, just before naptime a 4-year-old in a nursery school found a small button-shaped battery. Before dozing off on the cot, the child put the battery in his nose. A few days later, his mother noticed a discharge from his nose and thought he had a cold. After the boy complained of facial pain, she took him to a doctor. The battery was discovered lodged in his nose, leaking toxic chemicals. The battery caused serious burns and injuries, requiring extensive medical care.

Child Supervision and Daycare Negligence

Parents who leave children in the care of professionals trust them to make the decisions necessary to protect their children. This is reasonable, and every parent expects their children to be as healthy when they pick them up at the end of the day as when they left them there in the morning. Daycare programs, nursery schools, and camps, then, must exercise the highest degree of protection with children under their supervision. This includes taking adequate precautions to prevent all reasonable dangers; failure to do so can leave these programs liable for injuries to children in their care — and thousands of dollars in settlement or litigation costs.

These programs, however, are not “insurers of children’s safety.” The law requires those in charge to follow a standard of care that is appropriate for the age of the children under supervision and the particular circumstances. This duty does not require individual supervision of each child at all times. If a child sustains a serious injury while under the care of a daycare, nursery school, or camp provider, courts typically apply a duty/risk analysis to determine whether the provider met the applicable standard of care. This analysis takes into consideration the age of the child and the activity in which an injury was sustained, and then considers the program’s duty of supervision against the risk of injury. The standard of care forms the basis of reasonable actions for maintaining the health, safety, and welfare of children engaged in a specific activity.

While states and courts vary on examples of reasonable dangers in daycare centers, nurseries, and camps, the general rule is: Identify risks associated with operating a program and supervising children, and correct for those risks. This includes the risk that toys may become unsafe with use or neglect. Staff should also check for such dangers as electrical hazards, sharp objects, and unprotected holes in the playground surface. It is important to note that reasonable dangers are those that the staff can control. A facility inspection will reveal many of these potential dangers. In addition to physical risks, staff supervision should be a consideration. Does the facility provide the required ratio of appropriately trained supervisors to children? Compliance with this standard can reduce the potential for liability and claims of negligent supervision of students and staff.

In addition, the question of whether injury to a child was foreseeable is often addressed in litigation and argued by plaintiff and defendant attorneys in such cases. For example, if the director of a daycare center conducts a safety inspection and discovers the slide on the playground is not securely fastened to the ground, causing it to sway when children use it, is foreseeable by any reasonable person that a child could be injured when playing on it. Once the program director knows of a hazard, that person has a duty to correct the hazard and to guard the children from injury until it is corrected. In this example, a daycare administrator knew of the defect and reported it to the maintenance department but failed to warn of the danger by restricting children from using the slide and did not follow up to ensure that the maintenance department repaired the slide in a timely manner. The following week, when three children climbed the steps of the slide, it fell over, seriously injuring one child. This injury was foreseeable and the daycare center could not defend its inaction, which was judged to be a proximate cause of injury to the child.

Courts are less likely to hold daycare centers, nursery schools, and camps liable for injuries resulting from normal childhood play. For example, if a nursery school maintains the correct level of supervision and two children are running while engaged in play typical for their age, collide, and one is injured, the facility is unlikely to be held liable. This is considered typical child play that presents possible physical injury, a normal part of childhood interaction.

A child finding a loose battery on the floor of a nursery school and inserting it in his nose is not typical child play. When a facility provides equipment and supplies, including electronic books and toys, the agency has a duty to reasonably assure that children will use these items in a way that does not present a risk of harm. Program administrators have a duty to check consumer warnings and recalls on equipment. Following manufacturer recommendations and training staff on appropriate use of equipment is insurance against misuse that might cause injury to a child. A facility can reasonably protect a child from harm by regularly inspecting its equipment and placing any unsafe item out of commission. In this case, there was no inspection of the battery-operated electronic books, even though a staff member was aware that the battery compartments were compromised on several books. Lack of attention to this detail cost the daycare center substantial litigation costs and a large settlement.

Daycare Accidents and Negligent Supervision and Training of Staff

Other types of accidents can be prevented and daycare negligence claims avoided with proper staff training and with appropriately developed and implemented policies and procedures. For example, children in an afterschool daycare program in a school cafeteria were running when one ran into a 300-pound, fold-up cafeteria table left in the middle of the room. The table fell over, crushing the head of another student. In this situation, the person in charge failed to make even a cursory assessment of any dangerous conditions present. Any reasonable person would agree that injury is foreseeable if there is a non-stationary fold-up table in the middle of a room where children are running. This example illustrates the importance of staff training, policies, and procedures and regular inspections for hazards to ensure children’s safety. The procedure of the school custodian was clearly outlined in her job description: After lunch, fold up the tables, move them to the wall, and secure them in their proper location. The school had an adequate policy and the procedure was written.

Questions remained, however: Was the custodian adequately trained? Also, was the person appropriately supervised to ensure that she was meeting the requirements of her job description? The custodian saw or should have seen the table in the middle of the room. She should have moved it and secured it to the wall but didn’t. Additionally, the teacher saw the table in the play area but did not warn the students — and even encouraged them to play around an obviously dangerous item that was not supposed to be there. The custodian and the teacher both saw the table but deliberately ignored the foreseeability of student injury.

Sometimes, accidents and child injury are unavoidable even when daycare centers, summer camps, and schools follow all of the rules. For example, a child in a summer preschool program was accidentally struck in the eye with a stick, causing serious permanent injury, despite the presence of an appropriate number of counselors who were trained and carefully supervising the children. Because this center acted reasonably and appropriately with regard to staff hiring, training, and child supervision, it had a strong defense against liability.

Beyond accidents and environmental hazards, claims against a staff member of sexual or physical abuse or neglect, student-on-student sexual abuse, and even wrongful death are not always the fault of the program. A strong defense can be made when the agency practices appropriate supervisory techniques, develops and implements good policies and procedures, trains and supervises staff, and follows up on any foreseeable hazards and safety concerns. These steps include regular background checks for employees and volunteers, making sure that facilities are properly secured so that children can’t leave the premises, child–staff ratios, keeping up with state licensing requirements, training staff on how to report child abuse and neglect, and inviting outside agencies and professionals to conduct trainings and safety-and-risk assessments. Various online resources can provide daycare and camp administrators in the United States with additional information on local, state or national standards and guidance on health and safety requirements. The Canadian Child Care Federation also provides numerous guidelines and resources for childcare providers.

Conclusion

The standard for daycare centers, nursery schools, and camps is higher than one would expect of parents who supervise children at home or at a playground, and courts have continuously upheld supervision and safety as the primary intent of such facilities. The standard of care is measured by the judgment, knowledge, experience, perception of risk, and skill that a person in a professional capacity would have, and this standard must be comparable to best professional practices. Did the nursery school administration in the battery example take reasonable precautions to prevent injury? Did the administration of the day camp take reasonable precautions so that a child would not be injured with a stick? Although it is reasonable for parents to demand a safe environment for their children while at a nursery school, daycare center, or camp, courts recognize that it is impossible for caretakers to prevent every possible injury. On the other hand, those responsible for the safety of children must demonstrate that they acted appropriately, reasonably, and within the professional standard of care if they are to avoid liability and costly lawsuits.