April 23, 2017

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

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

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

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

 

School District Liability When an Outside Agency or Organization is Involved

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

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

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

Consider the following examples:

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

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

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

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

 

Questions That Help to Determine School District Liability and Duty

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

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

School Safety and Security: Responding to Terroristic Threats

student secuirty

In the wake of recent incidences of gun violence, school safety and security has become an increasingly pressing concern in the United States and Canada. Schools, summer camps, daycare centers, and other agencies charged with the safety of children have a duty to protect them, and their ability to do so depends on solid policies, training, and appropriate response to security threats. Laws, regulations, and internal policies designed to shield children from harm may be developed proactively in response to a risk assessment or reactively in response to an event that caused injury to a child. Both are valid options in today’s climate of terroristic threats to school safety and security. Inaction is not. Schools and other child-centered programs must consider and develop appropriate responses to this new dynamic.

Schools generally respond to terroristic threats quickly and decisively, but examples suggest that, at times, responses might not be sufficient based on the level of risk to school safety and security. In December 2015 — two weeks after 14 people were murdered nearby in a San Bernardino, Calif. center for people with developmental disabilities — the Los Angeles Unified School District responded to an e-mail threat to students by closing more than 1,000 schools for a day. At about the same time, New York City officials acknowledged having received a similar threat, but considered it so “outlandish” that they dismissed it as a hoax. As it turned out, nothing did occur in L.A. and the students were safe. New York City Police Commissioner William Bratton accused his Los Angeles counterparts of overreacting, but the question remains: What if the threat had been credible and the school had failed to act?

The incidences in New York and Los Angeles are not isolated to large American cities. In November 2015, authorities in Canada — a country that prides itself on its low crime rate — reacted to the latest in a rash of e-mailed threats by closing 71 schools in Quebec and Ottawa. Nothing was found in any of those searches, either. “Notwithstanding the fact that these threats seem to be unfounded, they are taken very seriously by police and will be the subject of an investigation,” police in Quebec said.

Taking action in response to these threats, which met the provincial definition of a terrorist act, is the right thing to do. Ignoring or making light of any terroristic threat places students and teachers at risk.

 

Appropriate Response to School Safety and Security Threats

The standard of professional care and legal standards for determining what constitutes a credible threat are contradictory and confusing. Until the U.S. Supreme Court defines a common standard, various contradictory lower court opinions will persist. With no clear standard of what constitutes a credible threat to school safety and security or how a school or other agency should respond to one, personnel must take all terroristic threats or suspected threats seriously.

States and provinces have definitions of what constitutes a terroristic threat, and these definitions may fit in the context of schools as well. For example, Pennsylvania law defines a terroristic threat as a threat to commit violence with intent to terrorize another person, to cause evacuation of a building, or to cause serious public inconvenience with reckless disregard for the risk of doing so. In the school context, a warning of a mass shooting that prompts a school evacuation and disrupts education constitutes a terroristic threat under Pennsylvania law, and in response, action can be taken against the perpetrator.

In addition to state and provincial laws, other resources provide guidance for schools:

  • In its 1999 report, “The School Shooter: A Threat Assessment Perspective,” the FBI’s Critical Incident Response Group recommended that schools adopt threat-response policies based on three tiers: low-level threats carrying a minimal risk; medium-level threats, which could possibly be carried out but are not entirely realistic; and high-level threats that pose a serious and imminent danger. The report provides guidance for categorizing threats into each tier.
  • A 2004 report by the U.S. Department of Education and the U.S. Secret Service, “The Final Report and Findings of the Safe Schools Initiative: Implications for the Prevention of Attacks in the United States,” suggests that there are productive actions that educators and others can pursue in response to the problem of targeted school violence and terrorism.
  • Another 2004 publication from the Department of Education and Secret Service, “Threat Assessment in Schools: A Guide to Managing Threatening Situations and to Creating Safe School Climates,” builds on the previous report. It sets forth a process, known as threat assessment, for managing students who may pose a threat.

The latter two reports stress that school shootings are rarely impulsive acts. The shooters told other students (though not the victims) about their plans in advance of their actions, but the other students did not tell adults. Telling others constituted a terroristic threat, but in many cases the students who knew of the threat failed to act. They did not report the threat to a school official who might have been able to intervene to prevent the compromise to school safety and security.

Perhaps these students did not know how to respond. Schools should provide training to staff, students, and parents and incorporate a definition of terroristic threat in the student code of conduct, the school security policy, and information that goes home to parents. Information from the school should clearly specify how a student, staff member, or someone from the community is to report threat information to a school official and how the official should respond. A good example is the policy of the School District of Philadelphia regarding terroristic threats. After defining a terroristic threat, Philadelphia’s policy states that:

  • Staff members and students shall be made aware of their responsibility for informing the building principal about any knowledge relevant to a possible or actual terroristic threat.
  • The building principal shall immediately call 911 and follow the district’s crisis plan after receiving a report of such a threat.
  • The principal shall react promptly to this information and knowledge, in compliance with state laws, regulations, and procedures established with local law enforcement.

 

School Safety and Security Threats Require Swift and Decisive Action

Sometimes there is no obvious threat, yet a terroristic act takes place. Depending on circumstances, the school might not be held responsible. For example, in a case in which I was engaged as the expert witness, a woman came through the front door of an elementary school with what she said was her nephew’s lunch in a brown bag. She asked the school secretary if she could take it to her nephew’s classroom. The secretary, who knew the woman, agreed. The woman went to the first-grade classroom, walked through the door, and greeted the teacher, “Good morning, Ms. Miller.” She then reached into the “lunch” bag, pulled out a revolver, and shot and killed the teacher in front of 24 children. Is it necessary to search every person who comes into a school, is known by staff, is the parent or aunt of a student, and who says she is there to bring a forgotten lunch to a child?

The answer is, “No.” In this case, it was my opinion that the school acted appropriately and reasonably under the circumstances. In this suburban community, there was no undue concern about a threat to the safety of the children in the school from outside sources. There was no announcement of a terroristic threat — the person entering the school did not say she was there to shoot a teacher. The secretary did not see a weapon, and she had no reason to believe the woman meant any harm. The woman was “screened” when she came into the school — she was known, she showed her license, signed in, and stated what was determined to be a legitimate reason for being there. Should the secretary have called the student to the office to pick up his “lunch?” Should the secretary have taken the “lunch” to the student? She would have noticed that the bag was too heavy for a peanut butter-and-jelly sandwich. But these thoughts come to mind after a tragedy like this. Can we do better in some situations? Yes, but this school, in my opinion, did nothing wrong. This terrible tragedy was sparked by a neighborhood spat. It is unfortunate that it ended with devastating consequences for 24 children.

There may be other, more obvious, situations that call to task the decision making of school personnel. One such example occurred in Texas, when a man approached a greeter in the school hallway and told her: “I am a gunman. My target is inside of the building. I’m going in the building. You stop me.” The principal did not call 911 because the man was immediately recognized as a parent and school volunteer. It appeared as if he had no weapon, and the school simply asked the man to leave. He did.

After this incident — which occurred less than a year after the shootings at Sandy Hook Elementary School — some parents felt that the school should have treated it more seriously. Though the man told police he was testing the school’s security response, he was later charged with making terroristic threats. The charge was appropriate, but was the school’s response reasonable? Even though the greeter at the front door recognized the man as a parent and trusted him, could he have carried out his threat? Yes, he could have. The duty of the school is to protect the students. Whenever there is any terroristic threat or reasonable suspicion of a threat, the school must act swiftly and decisively.

Closing school and depriving students of a day or so of their education, if it assures their safety, is worth the effort and is appropriate. Not having a clear policy, failing to train staff, and not addressing terroristic threats that might place students and staff in harm’s way can result in injury or death — and costly civil litigation from the harmed party. The best practice is always to place the protection of children and the wider school community at the top of the list. After all, learning can’t take place if children and staff don’t feel safe.
Schools should review state and provincial laws, agreements with law enforcement agencies, and other resources. Review existing school or program policies and procedures for responding to a terroristic threat. Inform and train students and staff about both the policy and what constitutes a terroristic threat, and if one occurs, carry out procedures decisively. Treating seriously any potentially deadly threat to a school or its inhabitants and involving the authorities without debating its credibility is the best course of action in regards to school safety and security.