April 23, 2017

Student Injury and Standard of Professional Care Analysis in Schools

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

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

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

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

 

Student Injury Lawsuits and Professional Standards of Care

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

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

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

 

Professional Standard and School Liability

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

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

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

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

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

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

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

 

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

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

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

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

 

Caring for children with special healthcare needs

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

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

 

When is a school or child care agency held liable?

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

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

 

Implementing a plan to avoid life-threatening events

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

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

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

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

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

 

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

Assessment of Liability: Child Abuse and Injury in Residential Care

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

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

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

Reasonable and prudent parent standard

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

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

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

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

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

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

Standard of care for residential and boarding schools

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

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

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

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

Expert role in assessing standards of care

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

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

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

Real case examples

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

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

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

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.

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.

Contributory Negligence Defense in School Liability Lawsuits

school liability

Contributory Negligence Defense in School Lawusits

Student injury or death often brings negative attention to a school. In fact, the first thing often reported publicly is an injured party’s claim that an incident stemmed from the negligence or misconduct of a staff member responsible for a child’s safety — a teacher, coach, or bus driver, for instance. But a student injury or death can result from any number of situations. These might range from school-related action or inaction, such as a breach of school security or failure to follow a student’s medical orders, to a student’s own actions and choices triggering a contributory negligence defense.

Consider these examples: A child runs into a street without a crossing guard present and is hit by a car; a teenager is shot by a rival gang member after his teacher sent him to a nearby restaurant to get her a sandwich; a boy sneaks into a restricted area of a building and falls through a ceiling; students drown in a river after taking boats out at night; and a girl on a skateboard flies off a ledge in a school parking lot. Any one of these cases could result in a liability lawsuit. But a determination of the facts may also show contributory negligence and produce strong defense against a liability claim.

The strength of a defense is determined by examining the four elements of negligence: (1) Duty to protect. Was a duty owed to the student? If it can be argued that no duty existed at the time of the injury, then a defense may be very strong. (2) Standard of care. Was reasonable care exercised in protecting the health, safety, and welfare of the student? If the school adequately instructed and warned students about a danger but a student purposefully disregarded these admonitions, a defense of contributory negligence might prevail. (3) Proximate cause. Was the injury or death directly related to something the school did or failed to do? If a school’s actions or inaction cannot be demonstrated as a proximate cause of the incident, there is a strong defense. (4) Actual injury. Even if the school breached a standard of care requiring specific safety measures, lack of an injury will contribute to the defense of the lawsuit.

This article will use a hypothetical case to demonstrate how the concept of contributory negligence may serve as a defense against liability and help plaintiff and defense attorneys assess the merit of a suit or the strength of a defense.

Determining if Contributory Negligence Applies as a Defense

According to the Restatement (Second) of Torts, section 463, contributory negligence is conduct that falls “below the standard to which [a person] should conform for his own protection.” School districts use a defense of contributory negligence when alleging that a student contributed to his or her own injury. Let’s illustrate how contributory negligence might apply when a student is seriously or fatally injured on school property.

A suburban junior high school warned students on a regular basis not to ride skateboards on school property. The principal made several such announcements over the public address system at the beginning of the school year. She also posted fliers around the school, gave one to each student in homeroom, and sent one home to parents. The announcements and fliers explained the dangers of skateboarding in the school parking lot because of the proximity of utility poles in the lot and a steep slope adjacent to it — all of which posed a threat of harm to a student who is unable to control a skateboard. The school posted signs in the parking lot reading “Danger — Skateboarding Prohibited.”

In the early morning hours before school, a group of seventh graders brought their skateboards to the parking lot and rode around. Five minutes later, one of them veered over the edge of the steep slope, crashing and seriously injuring her head. Another skateboarder called 911. EMTs treated the student onsite and transported her to a hospital. After three weeks in a coma, she died.

Our hypothetical case has the markings of a wrongful death lawsuit and a vigorous defense. In the context of the elements of negligence, let’s examine what plaintiff and defendant attorneys should consider.

First, was there a duty to protect the students? The school has a duty to reasonably protect people on its property, including the parking lot. These students were on school grounds at a time when students normally begin to arrive. The school might argue that the students should not have been in the parking lot at a certain time and, therefore, it had no duty to protect them. In this scenario, however, the weight will fall on the side of a duty to protect the students.

The next element to review is whether the school exercised reasonable care to protect its students. In our example, the school made clear to students that they were prohibited from skateboarding in the parking lot. The school also posted warning signs there. Plaintiff and defendant attorneys should examine whether school’s recognition of the danger was sufficient to protect students from harm. What did the school communicate to students? Were warnings adequate? In this situation, it’s likely that the school will argue successfully that it recognized the potential for danger and exercised reasonable care to protect students from harm.

The next question to answer is whether the student contributed in any way to her injury and death. Is it reasonable to consider that this girl would have understood the warnings but ignored them? In Russell v. Board of Regents of the University of Nebraska (423 N.W.2d 126 [1988]), the Supreme Court of Nebraska ruled that “One who is capable of understanding and discretion and who fails to exercise ordinary care and prudence to avoid dangers is negligent or contributory negligent.”

In determining whether contributory negligence applies, an attorney should consider three factors:

(1) Physical facts — the extent to which a hazard is noticeable and the degree of alertness called for by surrounding circumstances to avoid such a hazard. (2) The action taking place — the movement, sound, and physical activities of both the individual who was hurt as well as those of other people and objects in the vicinity. In other words, what distractions may or may not have influenced the chain of events? (3) The characteristics of the student who was hurt — age, intelligence, experience, knowledge, physical condition, or other factors that would influence a student’s ability to detect dangerous conditions or appreciate the hazards involved.

The third factor leads us to an important question: Is it possible that, because of diminished capacity, the student in our example would not be able to understand the dangers of riding a skateboard in the parking lot? Even with clear warnings about the potential for injuries when directions are not followed, some students may not understand how to keep themselves safe from harm. Assessing whether a school’s notice of danger was reasonable in this context can weigh heavily for or against a defense.

Some courts would hold that a very young child is incapable of contributory negligence because the child does not realize or understand the degree of care that must be exercised to avoid injury. Courts have differed on an age cutoff, but a common guideline is that children under the age of 7 are not capable of contributory negligence, Contributory negligence is also generally difficult to prove among students between the ages of 7 and 13, unless it can be shown that a student is unusually intelligent and mature.

School Liability and Duty of Care

Let’s conclude our example with an analysis of the facts.

Did the girl have the capacity to protect herself from harm? Let’s assume that the girl was 13 years old and in the advanced math/science track. Her IQ was above average and she didn’t have any known learning disabilities. Clearly, she would have been able to understand the principal’s announcements, read the fliers and the warning signs, and act in a way to prevent herself from injury by skateboarding in the parking lot.

Were the dangers in the parking lot clear? The slope was obvious to anyone near the edge of the parking area. The utility poles were noticeable to any person in the lot. The school posted numerous signs forbidding students to skateboard in the parking lot, and any reasonable person would see the signs. Several signs were posted near the slope and at entrances to the lot from various roads and walkways. The hazards, it could be argued, were clear to a reasonable student of the same age and capacity.

Did the school adequately exercise its duty to protect? In our case, a defense attorney may have a strong argument that the school acted appropriately under the circumstances — and that the student did not. The student had the capacity to understand that if she acted in a way counter to the school’s warnings, she risked placing herself in harm’s way. The student had a duty to protect herself from harm. Through her actions, she contributed to her own injury and subsequent death.

What was happening at the moment of injury? The girl and her friends were skateboarding in the parking lot — an action that was prohibited. There were no distractions in the lot that would have rendered her unable to control her skateboard before she went over the edge of the slope. In fact, it was learned that the injured student purposefully headed toward the slope while telling her classmates, “Look, I’m going to skate to the bottom!”

Not all liability claims are so clear-cut, and other intervening variables may warrant consideration when assessing a case involving student injury or death. Our example, however, provides a format for a plaintiff attorney to consider the merit of a case or for a defense attorney to evaluate the strength of a contributory negligence defense.

Summary

Determining the extent to which a person may be responsible for his or her own injury is critical in the school context, where the school is obligated to protect the health, safety, and welfare of students. Because of age or disability, some students may require greater supervision than others. Some students are bright and can understand the dangers that await them if they ignore warnings and choose to take a risk that could lead to injury. Two key variables in cases involving student injury and death are whether a school’s warnings to students about the dangers and risks were adequate and whether a student had the capacity to understand those warnings. When the answer to both is “yes,” then an examination of whether the student may have contributed to his or her own injury is warranted. The student’s actions may prove to be a strong defense against a liability suit.

School Liability and Negligent Supervision of Children with Disabilities

school liability for student injury

Schools and other agencies have a greater duty to supervise and care for the students in a manner specifically appropriate for the child’s disability.

For schools, daycare centers, after-school programs, and camps, children with disabilities often present significant supervisory challenges. If these children’s needs are not adequately addressed and a child is seriously injured or killed, negligent supervision may be viewed as a proximate cause. But what constitutes reasonable supervision of children with behavioral or physical disabilities? It depends on the unique needs of the student and a school’s standards for protecting that student from harm.

Students with developmental disabilities, autism, mental illness, or a physical disability require specialized programs and services, highly qualified personnel, or one-on-one assistance to protect them from harm. Thus, when a school is aware of the characteristics and needs of a child with a disability, its duty to supervise the student in a way that ensures his safety extends beyond the professional standard of care for the general student population. A student death or serious personal injury stemming from a failure to adhere to this higher standard may constitute negligent supervision and render the school liable for damages.

Student Safety and Supervision Standards

Consider a school or other agency that enrolls a child with behavioral or physical conditions that require specific interventions to keep him safe. In this case, the school or agency’s duty to supervise exceeds general or even specific supervision. General supervision is provided in a situation like recess on the playground, where two or three teachers supervise a group of students. Specific supervision is required when a student is engaged in an activity that presents an inherent danger if the student doesn’t receive careful instruction, such as the use of power tools during woodshop. For a child with a disability, however, the standard of care extends to a much more child-centered, individualized focus. In liability cases, the known characteristics of the child’s behavior or physical limitations frame an assessment of the reasonableness of supervision.

Is it reasonable for an elementary school principal to assign three playground aides to supervise 85 fifth-grade children, none of whom have any special needs, on a fenced-in playground after lunch? Is it reasonable for a residential treatment center administrator to approve an afternoon walk in a forest with 15 children and one teacher with the knowledge that one of the children has a history of running and leaving the protective supervision of staff?

The answers are “yes” in the first example and “no” in the second.

The Individuals with Disabilities Education Act requires that a child with a disability who qualifies for special education and related services must have an individualized education program (IEP) tailored to his or her needs. When the child exhibits behavior problems that interfere with her education or the education of others or that might cause injury to her or other students, the IEP must include a behavioral plan. Once the school identifies the behavior issues and an intervention plan is developed, this becomes the professional standard of care specific to the student. The IEP addresses the type and level of supervision that the school has determined necessary to protect the child from harm.

Because the child in our example above has a history of running off during class trips, the appropriate professional standard would likely require that an additional aide accompany her on trips. If another child has a history of getting out of his seat on the bus, running up and down the aisles, and distracting the driver, the appropriate professional standard of care might be to assign a bus aide to him.

If the defined standard is breached and the child or others are injured, that breach might be considered a proximate cause of injury — and the concept of sovereign immunity would not apply. In the absence of immunity, courts have held upheld student injury lawsuits stemming from the negligent failure to provide a reasonably safe environment or adequate supervision.

Negligent Supervision

Last month, a 12-year-old student with autism disappeared from a Bronx, N.Y. school for hours before he was found in Times Square. He left his classroom and was seen running down a staircase. The details of this student’s history are publicly unknown, but if the school had any prior experience of this student leaving his classroom unsupervised, it would have been the school’s duty to provide individual close supervision for the student. It might have been necessary for a classroom aide to be with him, one-on-one, during the day to supervise his movements through the school. The school had an obligation to consider the student’s capacity, determine whether any related behaviors would likely place him in harm’s way, and take reasonable steps to prevent harm through appropriate supervision.

In this case, the student was found and no harm came to him. But his story could have been much different, as with the case of Avonte Oquendo, the 14-year-old boy who slipped past a security desk and disappeared from his Queens, N.Y., school last October. Oquendo, who has autism and cannot speak and was missing for months before he was found dead. The investigations into the circumstances of both cases continue.

In another example of potential negligence, the City School District of New Rochelle, N.Y., was ordered last August to pay compensatory damages after it failed to evacuate two students in wheelchairs during a fire emergency. The U.S. Attorney for the Southern District of New York found that New Rochelle High School violated the Americans With Disabilities Act in not having an evacuation plan for students with mobility impairments. The students, one of whom has cerebral palsy, were left in a third-floor classroom while the rest of the school was evacuated. School officials, who have contested the U.S. Attorney’s findings, said their plan for dealing with students with disabilities in an emergency was to get them to a “safe room” where first responders can find them, but the safe room closest to the students required maneuvering down stairs. New York State law, however, requires a full evacuation during an actual emergency.

Even if the school had been found in compliance with the law, clearly, this plan was inadequate for a child in a wheelchair. The school had a duty to consider the students’ disabilities and their inability to navigate stairs, and to plan adequately for their evacuation in the event of an emergency.

Court Rulings on School Liability

Though a school has a higher duty to supervise students with special needs, not every student injury is the result of negligence on the part of the school or its personnel. Again, liability depends on the circumstances. Let’s take a look at two cases.

In Montana, a teacher had forbidden a developmentally disabled student from using certain equipment in the playground. Her “rule” became the professional standard of care specific to this child. On the day he slid down a pole on this equipment, fell, and fractured his tibia, his teacher was absent. At the time of the accident, the substitute teacher and another were on the playground supervising students. The boy’s parents sued the district for failing to supervise their son properly. A jury determined that the substitute teacher had not acted negligently and held for the district.

The parents appealed to the state Supreme Court, which observed that a verdict cannot be reversed when it is supported by substantial credible evidence. In this case, the substitute teacher testified that she was watching five students — all of whom required special attention. All parties agreed that the substitute teacher had a duty to supervise the student closely. However, the fact that the substitute had failed to see this student climbing the equipment did not constitute a breach of duty (Morgan v. Great Falls School Dist. No. 1, 995 P.2d 422 [Mont. 2000]).

In this example, the professional standard of care was that the student was not to play on the equipment. However, the focus in this case was not this standard, but on the general supervision that was provided at the time. Regardless of the standard, the court determined that because the substitute teacher was providing supervision, as required, the school was not liable for his injury. In other words, the teacher was doing her job. Would the result have been different if the complaint focused on the playground rule set by the teacher and the duty of the school to ensure that the substitute teacher enforced the rule?

In Louisiana, a student with spina bifida and hydrocephalus was unable to walk. The school provided transportation in a specially equipped bus. A bus aide was required to secure the student in the wheelchair with a lap restraint, but neither the wheelchair nor the bus provided the means of securing his upper body. After picking up the student, the bus driver backed the bus into a car as his mother watched. She asked the child if he was hurt. The boy didn’t respond, and the mother permitted him to continue to school. When he returned home with a bruised forehead and complained of head and back pain, however, the family took him to an emergency room. The family sued the school board, seeking reimbursement for treatment costs. A court found the school liable for the boy’s injuries.

An appeals court found ample evidence that the student’s injuries were caused by the accident. There was also sufficient evidence to show that the student had suffered ongoing physical pain as the result of the accident. The court affirmed the judgment (Marshall v. Caddo Parish School Bd., 743 So.2d 943 [La.Ct.App. 1999]).

In this case, would the student have been protected from harm if the child’s upper body had been secured? More than likely, he would not have been injured. This raises an important question: Would a reasonable person know that if the child’s upper body was not secure in his wheelchair and there was an accident, the child would likely become injured? If injury is foreseeable, it is the responsibility of those in charge to assure safety. This student’s safety could be reasonably assured if those in charge had provided him with a wheelchair and a bus equipped to secure him both across his lap and upper body.

Summary

When schools and other agencies responsible for the care of children have knowledge that a student’s behavioral or physical disability may place that student or others at higher risk of being seriously injured or killed, they have a higher duty to supervise students in a manner specifically appropriate for the child’s condition. A reasonable standard of care is tailored to the student’s unique history and needs. Failure to establish and follow such a standard may leave a school liable in the event of a casualty.

If the symptoms of a child’s disability suggest to a reasonable person that the student might be injured or even killed without special supervision and the responsibility for providing it is not carried out, the school will likely be held liable in the event of a student death or injury. If, on the other hand, the school provided an appropriate IEP and level of supervision but an injury still occurred, the school is unlikely to be held liable. Assessing the individual characteristics, emotional, and physical needs of students with disabilities and developing an appropriate safety plan is a clear duty of the school.

Student Injury and Reasonable Professional Standard

Student Injury and School Liability

Student Injury and School Liability

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

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

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

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

Student Safety: What should be done?

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

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

Wrongful Death Lawsuits against Schools and Agencies

Applying the Reasonable Standard to School Accidents

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

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

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

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

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

Elements of Tort Law and School Liability

Summary

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

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

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

School Safety Expert on Student Injury Liability and Negligence

Children in the United States under the age of 15 sustain more than 14 million unintentional injuries each year. It is estimated that 10 to 25 percent of these injuries occur in and around schools.

Negligence of teachers, coaches, camp counselors, bus drivers and others resulting in injury to a child is ever present the news. Negligence that results in sexual abuse, death, injury from faulty equipment, and sports accidents all present opportunities for large settlements or jury verdicts.

Plaintiff and defendant attorneys can follow a few recommended steps to determine the merit of filing a complaint and the strength of a defense.  In this article, school safety expert presents a systematic process  to guide attorneys when assessing student injury liability as the result of negligent employee behavior in schools and agencies.

Professional Standard of Care

Schools and other agencies that supervise children are held to a high standard of to protect the health, safety and well-being of children. A reasonable school or agency administrator or teacher/supervisor standard is applied when assessing school and agency negligence. This standard compares how another person of the same education, training and experience would respond in the same circumstance. This goes beyond the typical “reasonable person” standard and requires an assessment based upon the professional standard of care in the field of child supervision. When a child is injured, dies, is assaulted, or sexually abused often the outcome is a lawsuit claiming negligence on the part of the staff member. The court might find the school or agency guilty of a tort if the employee breached a professional duty which can be demonstrated as a proximate cause of the injury. If, on the other hand, the school or agency, through its employee, acted reasonably under the circumstances and within the professional standard of care, the defense is likely to prevail.

School Related Injuries

Because nearly 80 million children in the United States and Canada spend a great deal of their waking hours in school the potential scope of liability for negligence resulting in injury is broad. Public perception, however, tends to distort both the extent of school liability and the nature of injuries that children sustain while at school or when engaged in school-based activities.

Public attention on student injuries often focuses on school violence because that is what the media report. However, the vast majority of injuries to children at school are accidental and minor. Studies indicate that school-aged children are nine times more likely to sustain an unintentional injury than to be the victim of an intentional injury while at school.

Children in the United States under the age of 15 sustain more than 14 million unintentional injuries each year. It is estimated that 10 to 25 percent of these injuries occur in and around schools. In all, 1 in 14 students suffers a medically attended or temporarily disabling injury at school. [1]

In elementary schools playgrounds are associated with the preponderance of injuries. In secondary schools, athletics, including both physical education classes and organized sports, account for the majority of injuries among students. [2]

Extent of School Liability

Zirkel and Clark (2008) analyzed the trends in the frequency and outcomes of published decisions of student-initiated negligence claims in K–12 public schools in the United States. In each of these cases, schools and/or personnel were named as defendants. The researchers analyzed a representative sample of 212 published decisions involving personal injuries to students during a 15-year period from 1990 to 2005.

The sample included only student claims of simple negligence and excluded actions that alleged gross negligence, intentional torts, and educational malpractice. The sources of the data were the Sports and Torts sections of the Education Law Yearbook (ELA 1991–2006). The authors selected every fourth case within these boundaries to develop their sample.

In almost two thirds of the cases in this sample, the school successfully defended itself conclusively. The plaintiff won conclusively in less than one tenth of them.

The 212 decisions ranged across 40 states, with the largest number of total decisions in New York (n=66). On a per-capita basis, New York again led the nation, with 23 decisions per 1 million students. Among the 24 decisions (11%) in which student plaintiffs won conclusively or otherwise were awarded damages, Louisiana recorded the most (n=9), while New York (n=3) was the only other jurisdiction with more than one decision in the student’s favor. Louisiana, therefore, had the highest rate of decisions against schools, with students winning damages in 9 of the 14 cases during the study period (64%).

Among the various bases for decisions in this study, government and official immunity was the most prominent factor (46 percent) in school-favorable outcomes. The plaintiff’s failure to prove breach of duty, one of the elements of negligence to be discussed below, was the key element in 41 percent of cases decided in favor of school districts.

Secondary schools accounted for a notably higher frequency of published negligence decisions, a greater than 2-to-1 ratio. The authors attributed this to several factors that typically distinguish high schools from elementary schools: the greater availability of risky specialized activities; a larger proportion of students who are prone to violence; and generally larger student bodies. Primary schools accounted for a significantly higher proportion of conclusive decisions in the plaintiff-students’ favor (16% vs. 7% for secondary school students). In large part, the authors note, this is likely because younger students are considered more vulnerable, which places a higher duty of care on the school and contributes to a lower incidence of contributory negligence.

Among cases either decided conclusively in favor of student plaintiffs or where students were awarded damages, the most frequently named negligent individuals were coaches (n=5). Teachers were the source of the negligence in only two decisions, and in both cases, the teachers were not found personally liable. Other decisions were attributable to transit-related activity (n=12) — defined as the student riding on a school bus, walking to or from a bus, or walking between home and school; negligence in maintaining the premises (n=3); supervisory failure to prevent a student-teacher sexual relationship (n=1); and student bullying (n=1).

The key findings of this analysis, that the frequency of published decisions remained stable and that schools won the large majority of cases, are contrary to the general perception that school negligence is a major and increasing source of liability for schools. In fact, it is neither. This is a perception that is fueled by a number of factors, such as campaigns by political lobbying organizations and the liability insurance industry. It is also fed by the news media, which report on a handful of high-profile cases showcasing emotionally charged people. In truth, most cases that are similar to those reported by the media never make it as far as a courtroom. It should be noted, however, that in the small sample cases in which students won conclusively or received partial damages, the average known award was significant — $430,000.[3]

These findings illustrate the importance to attorneys of understanding what juries look for when determining a school or agency liability for the injury of a child. Let’s review the elements of tort law as it applies to school liability.

Elements of Tort Law and School Liability

Tort law provides a framework for determining school and agency liability.

Tort claims in the context of schools and agencies are based on the premise that an employee is liable for the consequences of his or her conduct if it results in injury to a child. The majority of child injury lawsuits involve claims of negligence. Tort claims are governed by state and provincial laws, but as with any negligence claim, each of the following elements must be assessed by both plaintiff and defendant attorneys: duty to protect, failure to exercise a reasonable standard of care, proximate cause, and actual injury.

Plaintiff and defendant attorneys should consider the following questions when assessing a school or agency liability for injury:

  • Did the school or agency have a duty to protect the child in the particular situation?
  • What was the reasonable standard of care under the circumstances, and did the school or agency apply that standard?
  • If there was a breach of the standard, was it a significant factor in causing the injury?
  • Did the party contribute to the injury through his or her own negligence?
  • Where there any intervening variables that may have interrupted the proximate cause or causation of injury.
  • Was there substantiated injury?

Duty to Protect

School and program administrators and child supervisors have a responsibility to anticipate potential and foreseeable dangers and take reasonable precautions to protect children from those dangers.

With respect to activities that take place during the school or agency program, the duty to protect is usually easy to prove. In addition to the school day and on school grounds, courts have held that this duty may apply beyond school hours and off school grounds. For instance, the school may have a duty to protect children on a school-owned or a contracted school bus. A teacher or aide may have a duty to protect a student from wandering off during a class trip. A teacher may have a duty to protect a student whom he drives home from football practice on Saturday morning.

Failure to Exercise a Reasonable Standard of Care

If a school or agency employee fails to take reasonable steps to protect a child from injury, the employee can be found negligent. Courts will weigh the actions of an employee against how a reasonable employee would have acted in a similar situation.

For instance, would a reasonable teacher hand a pair of a sharp scissors to a third-grader and ask her to scrape hardened clay from a wall while standing on a ladder? Would a reasonable custodian fail to repair a latch on the cafeteria wall that holds a 300 pound table in place? What precautions or level of supervision should the school or agency consider to protect children from injury in these situations?

The degree of care exercised by a reasonable administrator, teacher, bus driver, or other employee of a school or agency is determined by considering:

  • The employee’s training and experience;
  • The age and capacity of the child;
  • The type of activity and, if necessary, was the child trained and warned of dangers;
  • Whether the supervising employee was present; and,
  • The environment in which the injury occurred.

An elementary school student and a child in a pre-school age daycare center will typically require more supervision than a high school student when playing on the playground or on a class trip. And students in a physical education class will require closer supervision than those who are reading quietly in the library.

A child’s disability, if one is present, presents an additional layer to the definition of reasonable standard of care that must be considered. A child with a known behavioral disability, for instance, may require closer supervision on the playground. Courts have held that several factors, such as a student’s disability and unique needs, are relevant in determining a reasonable level of supervision in certain situations.

Proximate Cause

Did the school or agency employee fail to exercise a reasonable standard of care, and if so, did it place the child in harm’s way and result in injury?

The ability to prove this element, called, proximate cause in the United States (or causation in Canada and remoteness in the United Kingdom), depends on establishing that a child’s injury could have been foreseen and prevented. If the injury could have been anticipated and prevented by an employee’s exercise of a reasonable standard of care, legal causation may exist.

The question to ask is whether the injury was a natural and probable result of the wrongful act and should have been foreseen and could have been prevented in light of the circumstances. A wrongful act could be described as failure to supervise, for instance, or could involve a deliberate action such as sending a student off campus for a non-educational reason, however well intentioned, that leads to an injury. Let’s look at an example of a deliberate action. A woodshop teacher replaced a broken bolt for a protective device on a table saw with a bolt he finds in a desk drawer. The teacher knew that the bolt didn’t meet the manufacturer’s specifications but decided to use it anyway. Three days later, the device came loose and a student nearly severed three fingers while using the saw. A jury could determine that the teacher’s decision to use the nonstandard bolt was a deliberate action and proximate cause of the student’s injury.

A negligence claim will not be successful if the injury could not have been prevented, even when reasonable care is exercised. The inevitability of an accident nullifies proximate cause. This may hinge in part on whether the child contributed to his or her own injury. Let’s return to the woodshop and the table saw. Another teacher provided clear instruction on how to use the saw, tested each student with a paper and pencil test and individually observed and instructed each student at the saw. Students were provided with the safety rules and told of the danger of using the saw in the wrong way. The saw was regularly inspected and taken out of use if in need of repair. A student disregarded the instructions and warnings, used the saw inappropriately and was injured. Is the school liable for the student’s injury? Did the student contribute to his injury?

Contributory Negligence in School Liability Cases

If it can be revealed that a child contributed to the injury, the school or agency may invoke contributory negligence, a common defense against liability. If the court holds that contributory negligence was a factor in the child’s injury, the school or agency may be held only partially liable or not liable at all, depending on the jurisdiction. It is difficult to prove contributory negligence against children under the age of seven because tort laws generally hold that young children are incapable of contributory to their own negligence at that age. If, for instance, a pothole in the playground blacktop is marked off with orange cones, contributory negligence may not be a factor if a young child walks through the cones, trips in the pothole, and breaks an ankle. Even with adequate barriers and warnings on the playground, a young child may not be expected to understand the danger and protect his own safety and a child may be able to collect damages even if she contributed to her own injury.

Actual Injury

The presence of an actual injury is the final element that must be proven in a school or agency negligence case. The injury does not have to be physical — it can be emotional — but it must be documented and sustainable. Without a provable injury, damage suits will not be successful — even when negligence is involved.

School Liability

Understanding School & Agency Liability Involving Child Injuries

SUMMARY

The extent of claims against schools for negligence has remained fairly constant for more than two decades. Overwhelmingly, published decisions in simple negligence cases have favored school district defendants. A large proportion of these decisions have hinged on government and official immunity and on failure of plaintiffs to prove breach of duty.

Courts have examined the key elements of negligence in the context of schools and agencies responsible for the health, safety and wellbeing of children and the reasonable professional standard of care. It is important for attorneys who seek to bring a case against a school or agency, and attorneys who defend schools and agencies to have a system to determine the extent of a school or agency liability for the injury of a child.



[1] National SAFE KIDS Campaign. School Injury Fact Sheet. Washington: NSKC, 2004.

[2] Ibid.

[3] Zirkel, P.A. and Clark, J.H. “School Negligence Case Law Trends.” S.Ill Univ Law J. 2008:32; 345-363.