February 23, 2018

Managing the Risk to Prevent Injury and Student Death

Foreseeable risk of harm.When risk is managed, injury, student death, and resulting litigation are less likely to occur. All too frequently, it is only after a tragedy that officials look back and ask, “How could this have been avoided?” Risk management is a far-reaching topic, but when focused on the professional standard of care in educational and other child and youth-serving organizations, it comes down to protecting the safety of participants in the care and custody of a school or other organization.

Cases involving allegations of mismanagement, negligent supervision, failure to inspect equipment or premises, and other topics for which we provide forensic consultation and expert witness services are reviewed from the primary standard of care in the industry — protecting children from harm. This standard is accepted in the United States and Canada alike. An identified risk can unnecessarily place a child in harm’s way if it is not managed to reduce the likelihood of injury or student death.

Child and youth-serving organizations, such as public and private schools, residential programs, camps, and daycare centers, have a responsibility to protect the safety of children who participate in their programs. Managing risk in these organizations means actively and regularly assessing existing risks and how they can be effectively avoided. It also requires the development of policies that define the risks and how the organization mitigates them through regular training of students, staff, and parents; considers foreseeable hazards, given the circumstances of the program; inspects equipment, facilities, and grounds; sets standards for child supervision; makes sure risks are communicated to administrators and to those in charge of supervising children; and most importantly, enforces policies on a consistent basis. When these elements are in place and effectively communicated and enforced, there is less possibility that the organization will be held liable for the injury or student death. Without these elements in place, a plaintiff will be able to argue that the risk was there but was ignored by the organization.

 

Managing Foreseeable Risks of Harm to Prevent Personal Injury or Student Death

The concept of risk management emerged in the mid-1970s in relation to physical education and sports, camping and adventure activities, and parks. The American Camping Association added an accreditation standard regarding a risk management plan in the 1980s. Schools and other organizations, particularly since the Sandy Hook Elementary School shooting in 2012, recognize the potential for liability and are taking their responsibility to protect students from harm more seriously. However, the focus over the past five years has been mostly on the development of emergency-response plans when someone in or near the school poses a threat to student safety. These plans require that schools “lock down” the building in light of a threat — and in some circumstances, a school’s quick response has deterred tragedy.

But many other dangers and hazards that are often overlooked can increase the likelihood of personal injury, student death and, consequently, litigation. Consider these real-life cases for which we have been engaged: A third grade child is killed while crossing the street in front of his school; pit bulls attack a high school student participating in a physical education class in a park across the street from the school; five high school boys drown when they take a boat onto a river at night during a leadership training program. In all of these examples, questions arose as to whether administrators considered the foreseeability of these incidents and whether they failed to meet the standard of care to reasonably protect children from harm.

In the case of the third grader who was killed while crossing the street, the school principal was aware that cars parked under “no parking” signs on that street. When a child runs out from between cars, as was the case here, neither the child nor the driver of a vehicle will likely see each other until it’s too late. To add to the risk, the school did not provide crossing guards at the corners, and teachers let their students out unsupervised at the end of the day. After any risk is identified and assessed, the next step is to establish procedures to mitigate or eliminate the risk. The principal could have organized student dismissal differently, requiring teachers to escort their students out of the building and to the corner, where they could cross safely. When a child is injured or killed and the allegation is that the organization acted in a negligent way, the defendant typically reviews how the child was injured and identifies ways to avoid a similar occurrence in the future.

Similarly, when a school allowed the physical education teacher to use the city park across the street from the high school, it already knew that one of its teachers was seriously attacked by off-leash dogs on school grounds, and it was known that the park had a high crime rate. Classes were regularly held in an area that any reasonable administrator would consider dangerous, especially when classes were not monitored by someone from the school like a security office. One day, when an owner let his dogs off-leash, the dogs attacked one of the students, causing serious physical and emotional injury. This tragedy could have been averted if the school adequately assessed the risk and made an informed decision about allowing the teacher to regularly take her class to the park. Failure to adequately assess the risk of having students off school grounds, and in particular, in a known dangerous area, placed them in harm’s way.

In any situation where children are in an unfamiliar setting, such as on a field trip, those in charge have a responsibility to review the situation, identify the risks, and mitigate those risks. In the example of five high school students who drowned, the boys snuck out of a cabin in the middle of the night and went to the riverbank. They ignored the dangerous current and prominent signs to stay off the water, then took unsecured boats onto the water. The students were under the supervision of their school chaperones at a camp that was responsible only to provide seminars and educational programs during the day. In this example, the questions revolved around who had the responsibility to assess risks and protect the students. Did the camp assess the risk of drowning in the river and did it warn invitees appropriately by posting signs? Did the school assess the risk of students leaving cabins unsupervised during the night and the foreseeability of injury? Did the 17 and 18-year-old students have a responsibility for their own safety?

The school in this example had a policy that required at least one adult chaperone to supervise each of the four cabins rented by the school. When such a policy is developed, there is a reason for it — a risk has been identified and a determination has been made that by acting in a certain way, such as providing a number of chaperones with specific duties, the risk will be minimized. In this case, when the students left the cabin there was only one chaperone present. The others had moved to another cabin with the other adults, leaving the students with the ability to sneak out. One does not have to identify the risks to realize that high school students who leave their cabin in the middle of the night unsupervised can get into mischief that can result in harm. The camp was aware of the risk of drowning in the river and posted signs to warn invitees about it. The students were part of a special program and were selected as leaders, and there was nothing in their individual records that would cause a reasonable school administrator to be concerned that they would not be able to heed “Do Not Enter the River” warning signs. Ultimately, in a case like this, there may be shared responsibility for student deaths. The point is that each organization must assess its duty to the students, invitees, and others involved, determine the risks of harm, and develop policies and procedures to manage the risks.

 

Risk Management and Care of Students with Disabilities

Risk management also applies to the supervision and program development of students with disabilities. Often, children with specific disabilities may act in ways that require the school to review their behavior and develop a behavior intervention plan, assign an assistant teacher to the classroom or to escort the child through the school or on class trips, or to provide counseling or social-skill development classes for the child. We consider the unique circumstances of each case, and we review and analyze standards established through written policies and procedures and through unwritten customs and practices of an organization. An organization that should have (by statute or regulation), or could have (by moral or professional standard) acted affirmatively but did not manage a risk that resulted in injury to a child, may be liable.

On the other hand, risks can never be completely eliminated. Often, even when schools and other organizations have adequately assessed risk, developed policies, rules, and, regulations to manage the risk, properly communicated them to employees and participants, and adequately enforced the rules, accidents and injuries still occurred and defendants may not have directly contributed to the condition that caused injury. This is especially true in cases where the participant acted so quickly that no reasonable supervisor of that person would have been able to stop the behavior before injury occurred. In the defense of such cases, the important thing is that the organization recognized the risk of harm, managed the risk effectively, developed policies and procedures to eliminate the risk, developed and implemented student programs and services such as individualized education programs, communicated with supervisors, and enforced its policies.

It’s in the review and analysis of the details of a case where such questions are answered and an expert opinion can help to settle a lawsuit or provide information at trial for a verdict.

Professional Standard of Care in Past Cases of Child Sexual Abuse in Public and Private Schools

school sexual abuseStandard of care is a general expression of what constitutes care in professions such as medicine, nursing, education, or child care administration. In schools and other agencies responsible for the care and supervision of children, the professional standard of care is the ethical or legal responsibility of a professional to exercise the level of care, diligence, and skill that other professionals in the same discipline would apply in the same or similar circumstances. This, coupled with statutory requirements and case law, defines the care that an educational professional is responsible for providing to children which includes protection from child sexual abuse.

In the field of education administration and supervision, as in most professions, the standard of care changes over time. The standard regarding what constitutes sexual harassment and child sexual abuse has evolved over decades. At times, our firm is asked to review a case that took place a couple of decades ago or even longer. When addressing the question of whether a school or other child-related agency met the professional standard of care, we must determine what the accepted standard and practice was at that time of the alleged child sexual abuse or other harmful incident.

 

Evolution of the Standard of Care Regarding Sexual Harassment and Child Sexual Abuse

The current standard of care requires that a public or private school has clear policies prohibiting sexual harassment, that such a policy identifies a trained person to be notified with a complaint, and that it outlines and documents the investigative process and the results of the investigation. Before Title IX became law in 1972 and the Office of Civil Rights published declarative information to school administrators, standards of care varied. If an incident of sexual harassment or abuse occurred in 1968, the standards articulated in Title IX were not applicable as a matter of law. However, ethical and other community standards, as well as local board of education and agency policies and practices, may constitute the standard by which the behavior of professionals at that time can be judged.

The earliest standards defining the rights of children were reflected in the Declaration of the Rights of the Child, adopted by the United Nations General Assembly in 1959. This policy statement stressed 10 principles affirming the right of children to receive special protection, to be given opportunities and facilities that enable them to develop in a healthy and normal manner, to receive an education, and to be protected against neglect, cruelty, and exploitation, including child sexual abuse. This general edict became more specific as individual countries began to develop legislation regarding the care and protection of children and as case law began to define neglect, cruelty, and exploitation — including sexual exploitation and child sexual abuse.

Over the past 20 years, our society has become more aware of the problem of children being sexually harassed and abused by adults representing religious and educational organizations. Cases such as Franklin v. Gwinnett County Public Schools in 1992 and Davis v. Monroe County Board of Education in 1996 defined sexual harassment and identified how a school’s complacency created an abusive environment depriving a student of educational benefits.  The Supreme Court ruled in the Franklin matter that monetary damages could be awarded to individual victims of sexual harassment under Title IX and a school district could be held financially liable for a coach’s predatory behavior toward a student athlete.  In the Davis matter, the Supreme Court decision helped to clarify the definition of sexual harassment of one student toward another and further clarified the professional standard required of schools. The court held that a private Title IX damages action may lie against a school board in cases of student-on-student harassment — but only when the school has actual knowledge of sexual harassment that is so severe, pervasive, and objectively offensive that it effectively deprives the student of access to education and was deliberately indifferent to this activity.

Another Supreme Court case that further established the professional standard of care was Gebser v. Lago Vista Independent School District, a case that addressed the issue of teachers who engage in sexual relationships with students. In this case, the Supreme Court determined that school districts are not liable under Title IX for teacher–student sexual harassment unless a responsible employee actually knew of the abuse and had the power to end it but failed to do so. These cases, along with standards from the Office of Civil Rights of the Department of Education in the form of “Dear Colleague” letters, contributed to the evolution of standards.

Though educational institutions, including K-12 schools and university level institutions, became subject to Title IX regulations in 1972, it was not until Franklin, Gebser and Davis were decided in 1992, 1998 and 1999, respectively, that the Supreme Court would define how schools can be held accountable under Title IX for sexual harassment. For allegations that occurred within the intervening quarter century, it can be challenging to identify and define the professional standard of care. However, there are other statutes, such as state child abuse-and-neglect laws and board of education policies written within that time span, that can help to identify the professional standard of care. For example, California enacted its first child-abuse reporting law in 1963. Before then, there was no legislation that defined the professional standard of care, such as mandatory reporting of suspected child abuse and neglect.  At that time, mandated reporters were subject to liability for making reports of abuse that turned out to be unfounded, and this thwarted reporting until the law was revised in 1980, when failure to report child abuse was criminalized and mandated reporters were given immunity for making reports. The California example has become the standard around the country. This is an example of how important it is to be aware of the prevailing professional standard when addressing the circumstances of a situation. Before the change in the California law, if a teacher had suspicion that a child was being abused, that person may not have reported it out of fear of reprisal. It doesn’t make that right, but when looking at the failure to act on the part of a teacher, one must take into consideration the laws and standards at the time that often set the moral compass.

A prohibition of inappropriate sexual behavior was not mentioned decades ago in documents of the National School Boards Association, the American Association of School Administrators, or other recognized standard-setting organizations. Without a specific standard against which to compare what the administration of a school or agency did or failed to do, a plaintiff may have a more difficult time proving a breach of the standard. On the other hand, when there is statute, regulation, or policy identified within a specific timeframe and the allegation of abuse falls within an era in which these standards were acceptable in the field, then as an expert witness I am able to use those as benchmarks. When standards are in place, the plaintiff will have a better likelihood of successfully arguing that the standard was breached.

 

Case examples: Determining Standard of Care in Past Child Sexual Abuse or Harassment

When an attorney engages our firm to render an expert opinion about whether a school or other child supervisory agency in the United States or Canada may be liable for an alleged incident in the past, the complexities inherent in changing standards — such as the example of California law — require us to research and identify the standard of care at a specific time or period to render an opinion as to whether the school or agency met that standard.

For example, one of our case reviews involved alleged ongoing sexual harassment and child sexual abuse by a teacher between 1982 and 1989. A former elementary school student alleged that his teacher sexually abused him over that period while providing tutoring services at the student’s home. My review of the professional standard of care at that time revealed that there was no standard, statute or regulation, or board of education policy that required the school to develop a policy regarding sexual harassment of students by employees or to provide training to employees regarding sexual harassment. Additionally, there was no board of education policy requiring the school to develop standards regarding the provision of tutoring. During this timeframe, the professional standard of care did not compel the school to monitor outside teacher–student relationships, including tutoring relationships that parents arranged for and approved. In comparing today’s standard with that in the 1980s, one finds that because of the development of laws such as Title IX and the understanding that children are targeted by some teachers who sexually harass and abuse them, the standard of care is very different. Nowadays, the professional standard of care requires that schools provide employees with training on detection and prevention of sexual harassment, child sexual abuse and behaviors and ethical boundaries that cross the line of a typical teacher–student relationship. The opinion reached, following a review of testimony and documents, was that the school did not breach the professional standard of care at the time because none clearly existed.

Another case illustrates the challenges that exist when attempting to identify the professional standard of care over a period of time that might extend decades. This case was based on an allegation of physical, emotional, and sexual abuse of students with disabilities in a residential school. The timeframe of the allegations of abuse spanned from 1951 through 2012. The state Department of Education was responsible for the supervision of educational programs in this publicly supported and funded school. It was also in charge of inspection, the improvement of instruction, and the protection of disabled students. As part of the review of this case to render an opinion as to whether the government, the Department of Education, and the school collectively and independently met the applicable standard of professional care within this timeframe, we began by reviewing legislation from the early 1900s that placed the education of disabled students, including the plaintiffs in the lawsuit, under the authority of the government. The claims in this case, specific to the school, spanned six decades, during which time standards of care changed from decade to decade. The challenge of this review was to identify each standard on a timeline from 1950s for each decade through the present and determine whether the involved entities met the standard for the protection of students with disabilities who were under the control, care, and supervision of the government.

In some cases, including this one, basic parental standards are considered when no other standards exist. This is done under the theory of in loco parentis and the school’s basic responsibility to protect students and act as any reasonable parent would, based on the circumstances and known information. For example, if the dorm supervisors in 1950s were aware that male students were entering rooms of female students at night and female students complained of inappropriate behavior or sexual conduct, the school had a responsibility to ensure that students are appropriately supervised to prevent such situations, as any reasonable parent at that time would do.

When reviewing such cases, to render an opinion as to whether a school or agency acted appropriately and reasonably and met the professional standard of care, we first determine what the accepted standard was during the relevant period of the allegation of child sexual abuse or other harmful incident. Next, we consider the standards as defined by the school or agency, based on the existing policies and procedures at that time. By applying the education, training, and professional experience of an education administrator to the review of the issues of a case and the relevant standards at the time, an opinion is rendered as to whether the school or agency met the professional standard of care within the field of education administration and supervision.

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

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

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

 

Professional Standard of Care Defined

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

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

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

 

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

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

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

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

 

Legal and Professional Standards of Care for Children with Disabilities

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

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

Title IX: What Constitutes Actual Notice of Sexual Harassment or Sexual Violence in a School Setting?

Title IXUnder Title IX, for a school to be held liable for denying an educational opportunity to a student who was sexually harassed or abused, the court must be convinced that the school had actual notice of prohibited behavior and that it acted deliberately indifferent to it. Often, it is a challenge to define what “actual notice” is and whether the school had such notice. If the school has no information on which to act to end harassment or abuse, it cannot be determined to be indifferent. In some of the cases we have worked on, however, there has been some level of notice that, if investigated, would have confirmed that harassment or abuse was taking place. Such notice could be a teacher hearing a rumor about a sexual relationship between another teacher and a student, a staff member watching a student speak in a sexually inappropriate way to another student, or the school receiving notice that that an off-campus sexual violence event is creating retaliation at school. Examples such as these may constitute actual notice, depending on the circumstances.

If actual notice is established, the next question to answer is whether the school acted with deliberate indifference to the notice or complaint. The school’s response is key when an education expert witness renders an opinion. This is not the same standard as reasonableness or negligence, as defined in the legal context. This is a professional standard-of-care issue that can be addressed by a qualified expert witness in education administration and supervision. A qualified expert can render an opinion as to whether a school’s response, or lack of response, to a report of sexual harassment was reasonable in light of known circumstances.

 

What Constitutes Actual Notice Under Title IX?

The question of what constitutes actual notice has not been settled, and federal courts have used various methods to define it. The Court of Appeals for the Third Circuit approved a jury instruction that states “an educational institution has actual knowledge/notice if it knows the underlying facts, indicating sufficiently substantial danger to students and was therefore aware of the danger.” In this case, the threshold for actual knowledge may be knowing some facts about a relationship that can be interpreted as substantially dangerous.

In James Hill v. Madison County School Board, the Court of Appeals for the Eleventh Circuit held that the U.S. District Court for the Northern District of Alabama applied an inappropriately heightened actual notice requirement that, if adopted, would absolve schools of the responsibility to respond to known sexual harassment in all but the narrowest of circumstances. The district court defined actual notice as knowledge of harassment that is already so severe it denies the victim an educational opportunity. However, the Court of Appeals noted that schools are required to respond to known harassment before it reaches that level of severity. If the school responds to this knowledge with deliberate indifference, and this deliberate indifference results in harassment severe enough to deprive the victim of an educational opportunity, then actual knowledge has been demonstrated. Based on this, schools must respond before an episode escalates and deprives the student of an educational opportunity. This may include the idea that schools should respond to rumors of inappropriate relationships between teachers and students rather than treating them as students trying to cause trouble. As mandated reporters in most states, schools are required to report any suspicions of an inappropriate teacher–student sexual relationship and allow authorities to conduct an investigation. There are no penalties for making reports that are later unsubstantiated.

 

School Investigation Requirements Under Title IX

In N.R. Doe v. St. Francis School District, the Seventh Circuit Court of Appeals held that actual notice must be actual knowledge of misconduct, not just actual knowledge of the risk of misconduct. Here, a teacher exchanged suggestive text messages and kisses with one of her students. The boy’s mother discovered some of the texts and transferred her son to a private school. The teacher was fired, prosecuted, and pled guilty to fourth-degree sexual assault. The child later sued the school district under Title IX. In the complaint, the student alleged that reports of both an inappropriate relationship between the teacher and the teacher’s reciprocation of the student’s crush were sufficient to put the school district on notice of misconduct. The court, however, found that these facts did not satisfy the requirement of actual knowledge. Rather, it found, the school district only had knowledge that would cause a reasonable person to investigate further. Notice, it ruled, must be actual knowledge of misconduct — not just knowledge of a risk of misconduct.

In a typical school setting, information such as this should be concerning enough to cause a reasonable school administrator to investigate further. If the school administration had acted to investigate, it is possible that it would have obtained knowledge of a sexual assault. To protect students from harm and the school from costly litigation, it is always prudent to investigate information or rumors about potential misconduct.

These examples demonstrate how the courts are shaping the concept of actual notice of sexual harassment or abuse in schools. Each case must be reviewed in its own context and through a reasonable school administrator standard. Should the school have investigated when the principal was told that a teacher and student were holding hands in the hallway? How did the administration implement the school’s policies when a parent complained that her son’s teacher seemed to be spending too much time with him after school? Did the school adequately investigate a report from a 14-year-old that an older student keeps following her into the girls’ bathroom? Any of these scenarios can be determined to be sexual harassment and can reasonably lead to sexual abuse. As an expert witness in education administration and supervision, my advice to schools is to err on the side of caution, assume that it is possible that there may be a Title IX violation, and conduct a thorough investigation according to the policies and procedures of the school district and the requirements of Title IX.

In Davis v. Monroe County Board of Education, the Eleventh Circuit Court of Appeals did not require that a school have a policy outlining the way actual notice is received or describe the form this notice should take. This has been the subject of countless lawsuits filed in federal courts under Title IX. Determining whether actual notice was provided not always easy to assess. This is particularly the case when students or parents do not know who should be told or when teachers fail to share reports from students or parents with the administration. An education expert witness must consider the specifics of a case, the context in which the alleged notice may have taken place, the understanding on the part of any individuals who received notice, and the overall context of the school environment when rendering an expert opinion as to whether a school received actual notice and if it responded reasonably to it.

 

Deliberate Indifference and Professional Standard of Care

In some of the cases our firm has handled, it has become apparent that although sexual harassment or abuse may have occurred at the school or during a school-sponsored activity, the school had no actual notice of it. Without actual notice, there can be no deliberate indifference. On the other hand, in some cases it can be easily determined that there was at least some level of notice that sexual harassment may be taking place. Reporting a rumor about a sexual relationship between a teacher and a student, under the totality of the circumstances, constitutes actual notice.

In its March 13, 1997 guidance, the Office for Civil Rights stated:

“Title IX does not make a school responsible for the actions of the harassing student, but rather for its own discrimination in failing to take immediate and appropriate steps to remedy the hostile environment once a school official knows about it. If a student is sexually harassed by a fellow student, and a school official knows about it, but does not stop it, the school is permitting an atmosphere of sexual discrimination to permeate the educational program. The school is liable for its own action, of lack of action, in response to this discrimination.”

When we review Title IX matters, our experts are asked to determine whether a school acted reasonably within the professional standard of care. The focus of our review is on how the school administration and/or other employees responded to complaints of sexual harassment or abuse. Although we carefully review the documents describing allegations of harassment and/or abuse and review the student record and staff personnel file, this information is less relevant than how the school responded to the report or a reasonable suspicion of inappropriate behavior.

For example, if a student reports to her teacher that a classmate is continuously talking to her in a sexual manner and the teacher simply responds, “Ignore him and he’ll stop,” this might appear to be an inadequate response under the circumstances. If this occurs numerous times and the student now doesn’t want to come to school because she feels uncomfortable around her peer, then a hostile school environment has likely developed. Often, it is often argued that because the student did not report the behavior to a school administrator or another person in authority who could have intervened to end the harassment, the school is not liable. However, the question is: Did the school (the teacher) act with deliberate indifference to the complaint(s) of the student, and was this a reasonable cause for harassment to continue, thus leading to a hostile learning environment?

We review school policies regarding sexual harassment, how it can be reported, and the expected response of the school. Next, we chart what issues of harassment were allegedly or actually reported to the institution and the school’s response. Finally, we render an expert opinion as to whether, in light of these facts, the school, through its administration and/or other employees, knew of the harassment and/or abuse but failed to respond. Did the school act deliberately indifferent to the safety of the student? If it knew of harassment or abuse and did in fact respond, then we consider whether the response was appropriate and reasonable under the circumstances and meant to end the harassment. A school may not be liable for damages unless its deliberate indifference subjects students to harassment or continued harassment.

Student Safety: Screening and Background Checks for School Volunteers

student safetySchools, after-school programs, summer camps, sunday schools, daycares and other agencies that supervise children are responsible for student safety of children in their care. Failing to apply the same attention to ensuring that non-licensed individuals, such as volunteers, meet the same standards as teachers and other paid staff can place students — and ultimately a school, district, or other agency — at risk. When the history of a volunteer or chaperone on an overnight school trip includes something that would raise a red flag but the school is unaware of it, school officials are not able to make an informed decision about whether or not that person should be allowed to interact with children.

The risks of not adequately screening individuals who have direct contact with children have been apparent in cases for which Education Management Consulting, LLC, has been engaged to review and provide expert witness services. Many such cases involve harm, injury, negligent supervision and even sexual abuse of children by volunteers. At times, our reviews of school policies, personnel records, and testimony have determined that failure to conduct a reasonably appropriate background check and screening was the proximate cause of harm to children.

In one such case, the school argued that there was no state requirement for a district to apply the same level of scrutiny to volunteers as when it hires teachers. The school had conducted a standard criminal background check, but unlike the standard it applied to teachers, the school did not conduct interviews with supervisors at past volunteer posts. The volunteer was allowed to participate in a classroom on a regular basis. Over time, he developed an inappropriate sexual relationship with one of the students. A case review discovered that he had served as a volunteer in another school district, where he was told not to come back because the administration was uncomfortable about his interactions with students. The volunteer had listed the prior school and his supervisor on his volunteer application, but the new school did not contact the prior school for a reference. Had the school done so, it likely would not have compromised their student safety and would have heard about the previous school’s concerns and rejected his volunteer application.

 

State Requirements for Volunteer Screenings and Background Checks

Background checks and screenings of teachers are required in every state, and school districts have developed procedures to provide reasonable assurance that only teachers of high moral quality come in contact with children. When a background check reveals that a candidate was convicted of domestic violence or another crime against a person, the school may be prohibited from hiring that person.

Conducting background checks on prospective teachers as a student safety measure has been established in the field of education administration for decades. However, it wasn’t until 2000 that states began to pass laws addressing background checks on volunteers, and to this day, a patchwork of legal requirements exists. New Mexico, for instance, mandates background checks on all school volunteers, while New Jersey “allows” but does not require boards of education to conduct criminal record checks on volunteers. Volunteers in Florida schools are screened only for criminal histories logged in the state of Florida but not in other states. When state law is less strict for volunteers than it is for teachers, schools are free to adopt their own policies that are more stringent.

National guidelines developed by the American Academy of Pediatrics and the National Association of School Nurses encourage schools to conduct criminal background checks on all volunteers. To help schools implement this guideline, Texas Education Code allows a school district to obtain from any law enforcement or criminal justice agency all criminal records that relate to a person who serves as or has applied to be a school volunteer. In Pennsylvania, schools must check volunteer applicants’ backgrounds through the state Department of Human Services and Pennsylvania State Police, and are also required to obtain a federal criminal history. Seattle Public Schools screen all volunteers who work directly with students through the Washington Access to Criminal History background check system — the same process used for teachers and other licensed staff — and conducts reference checks. Volunteers are allowed to begin service before the screening process is completed, provided there is proper supervision. The volunteer’s continued involvement with the school depends on the results of the check.

 

Student Safety in Specialized Programs and Placements

While schools have a responsibility to protect student safety on campus, on school-sponsored trips, and at school activities, are they also responsible for the protection of students who attend programs at a school that is not under its direct control, such as a special education or vocational school? Should the school that assigns students to such programs assure that the employees and volunteers at the receiving school meet certain screening standards? If a school allows a private after-school program to operate in its gym, should it assure that volunteers in that program meet the same standard as if they volunteered in the school?

These are among the many questions in cases for which we have been engaged. Every case is uniquely different, and an analysis leading to an expert opinion can be very complex. In each case, however, the ultimate standard of professional care is that the school, through its administration, has a responsibility to act appropriately and reasonably to protect the health, safety, and well-being of its children. It is reasonable for the home school to expect that an external program or service will effectively screen employees and volunteers who come in contact with its students.

Examining one of our cases involving a child with a disability will help to illustrate. A high school student was placed in a class for students with cognitive and physical disabilities. As she got older, it was necessary for the school to deliver vocational training services through a separate agency. School personnel, the student’s parents, and others involved in this decision understood that the student demonstrated inappropriate, sexually oriented behavior toward peers and needed careful supervision wherever she was educated. This also required that those working with her at the school, including teachers and volunteers, were appropriately screened. Knowing of her propensity for this type of behavior should have caused her school to consider whether those she would come in contact with at the new placement would allow or encourage this behavior. Shortly after the student was placed at this program, and in my opinion because she was not adequately supervised, an adult volunteer engaged in inappropriate sexual behavior with her. As part of the overall review of the case, the personnel file of the volunteer was examined and it revealed that he was not screened by the vocational program administration — in my opinion, a failure of the home school to meet the professional standard of care. Teachers at the program needed to be licensed, which required a criminal background check. Volunteers, however, were allowed to work in the program without a background check. It would have been reasonable for the school sending its student to the vocational program to inquire about the program’s policy regarding background checks for volunteers and then determine whether the student would reasonably be protected from harm.

 

Student Safety and Standard of Professional Care

When reviewing cases similar to those discussed above, we consider state law and school district policy as the standard, and then consider the overall responsibility of a school to protect its students. This is the overriding standard of professional care. If an adult staff member or volunteer who was not adequately screened should sexually assault a student, then an argument may be made that the proximate cause of the child’s injury was failure on the part of the school to fully investigate the person’s background in order to reasonably assure the protection of students. On the other hand, if the school followed state law and its own policy, applying the same standard to approving volunteers as it did for teachers and other staff, and yet an inappropriate relationship developed because of other circumstances, then it can be argued that the screening process was appropriate.

Does everyone in a school or other agency who has contact with children have to be screened? And what is an appropriate and reasonable level of screening? The distinction that should be made is whether a person is a visitor to a program or a volunteer who has a defined regular role in it. Parents have the right to visit their child’s school and to observe their child in class. They can have lunch with their child and attend classroom and school events. In this context, the parent is a visitor, and complete background checks are not required. When a parent or other person takes on a regular role in the classroom or supervises on an overnight class trip, more scrutiny is required. Providing assistance in these ways shifts the person’s classification from visitor to volunteer. If the person is in the school on a regular basis and others expect to see the person frequently, then he or she is considered a volunteer, and the school must make an informed determination as to whether or not to allow the person to interact with students.

Schools are held to strict requirements when hiring licensed school personnel. Applying the same standard to the screening of volunteers is one way to protect children from harm and keep them safe.

Recreational and Summer Camp Activity Injury Liability

Activity Injury LiabilityProtection of the health, safety, and well-being of children who participate in recreational activities at a summer camp, summer school program, or community and private recreation centers should be the standard operating procedure of all those who provide these services. The standard of care owed to children who participate in organized or sponsored recreational activities such as sports, dance, swimming, rock climbing and variety of other activities at a camp or other agency must be consistent with professional standards in the field. Ingraining standardized practices and responsible planning and supervision into the work habits of all employees will help to protect the employees and the agency from activity injury liability and costly litigation.

Many of the cases for which Education Management Consulting, LLC, provides consultation and expert witness services involve claims of negligence initiated by parents against a camp, school, or other activity center for injuries sustained while participating in sports or other physical activities. Criteria associated with the appropriate and reasonable care of children involved in recreational activities are generally of a higher degree than what would ordinarily be expected of the average person who cares for children outside of this context.

 

Reducing Risks of  Activity Injury Liability

In a 2013 article, “School and Summer Camp Liability,” I wrote that “meticulous planning will keep children safer and could help a camp or other agency avoid liability if they are sued for the injury of a child.” Camp administrators should instruct their staff to consider all the possible dangers that might cause injury to a child, then make a list of those dangers and how each can be avoided. The article concluded with a list of 10 elements elements that Education Management Consulting, LLC, considers when reviewing a case, including a camp’s risk management procedures. Having standards, certifications, policies, training, and adequate supervision in place is extremely important for minimizing risk for summer camps or other agencies that offer recreational activities that are generally accepted to be inherently more dangerous, such as boating, rock climbing, horseback riding, swimming, or water skiing.

At a minimum, recreational activity providers should [MD1] adhere to, and train staff in, the requirements of the authority that provides a license to operate and of the standards of the appropriate oversight organization. As an example of an oversight agency, the American Camping Association (ACA) publishes standards for ACA accreditation. These standards also serve to educate camp directors and personnel about practices and procedures that are generally followed within the camp industry. Although camps can choose to not be accredited, the ACA standards reflect the standard of professional care to which camps, certified or not, should adhere.

Individuals hired by camps to perform specialized functions, such as lifeguards or water safety instructors, powerboat operators, and horseback riding instructors, may also need to be certified or licensed. Certification or licensure implies that the person has received the requisite training. And yet, there is always room for the camp to provide additional training specific to the population being served or any unique activities. For instance, the Americans with Disabilities Act prohibits camps from refusing admission to children with disabilities. This presents challenges that can be met with adequate training. Where there are children with disabilities, specialized training that extends beyond certification instruction is necessary so that staff know how to handle special circumstances, such as a child with a behavioral problem.

When a camp makes safety training its first priority, there is less chance that an accident will occur, though if a child does become injured, there is less chance the sponsor will be held liable. The methodical and systematized practice of safety education until all employees instinctively perform their functions with safety uppermost in mind will help to keep children safe.

Reasonably appropriate action under specific circumstances — grounded in the professional standard of care and the camp or other agency’s own policies — will protect the camp or agency from liability if a child is injured. The camp or agency must have policies that specify standards for staff hiring and supervision and for site- and equipment-safety monitoring. An organization’s policies should be reflective of standards in the field of child supervision, as well as those gained from laws, regulations, and standards of the applicable oversight agency, such as the ACA. If a claim is filed against the camp, these policies will be reviewed and a determination made as to whether the camp or its staff met standards in the field and its own standards. If a camp lacks policies that adequately reflect standards of an oversight agency — or if it has good policies but does not follow them — an expert witness may determine these deficiencies to be the proximate cause of a child’s death or injury.

 

Specialized Training and Supervision 

As mentioned above, the ACA is one of the oversight agencies that provides accreditation to operate a camp. If the camp provides a watersport program with swimming, according to the ACA, it must have an appropriately certified lifeguard for each swimming activity. Further, camps must have written documentation that every lifeguard has demonstrated skill in rescue-and-emergency procedures specific to the activity. If the camp administration doesn’t check the lifeguard’s certification to ensure that it’s up to date and a child drowns while that person was charged with the child’s safety, the camp may be held liable for the death because of negligent hiring.

Even if the lifeguard has appropriate, up-to-date certification, it is the responsibility of the camp to adequately supervise the lifeguard. Certification doesn’t guarantee that the lifeguard won’t be easily distracted from closely watching the children in the pool. A person responsible for supervising the lifeguard should observe the person on a regular schedule, informally and formally, to be reasonably sure that he or she is adequately performing the job duties that will protect children. If a child drowns and a parent sues the camp, witnesses might testify that the lifeguard on duty at the time regularly left the lifeguard station, engaged in lengthy conversations with people standing next to him, or generally did not pay close attention to the children in the pool. If this is the case, it is likely the camp will be found liable for negligent supervision of the lifeguard. On the other hand, if the camp administration is able to show that it conducted regular observations of that person and that at no time did the lifeguard demonstrate inattention to his duties, the camp may be able to show it was not negligent in supervising the lifeguard. In this case, the claim of negligent supervision will likely fail.

Where a camp uses motorized boats for any activity, the boat drivers must be trained on state laws, rules of the water, safe loading and unloading of passengers, mechanical failure, and refueling. On-the-water training also is required, according to the National Association of State Boating Law Administrators (NASBLA). Anyone who operates a power boat at a camp must have the appropriate state-required license. The license assures that its holder has been trained. If an accident occurs involving a motorized boat that causes injury to a camper, and the driver of the boat does not meet state requirements of having a license and appropriate training, this will become one of the elements of negligence that might entitle a plaintiff to damages.

In a case reviewed by Education Management Consulting, LLC, a camper was seriously injured when he was pushed from an inflatable pontoon boat being towed behind a motorized boat. Upon review of the deposition testimony, police reports, and other documents, it was learned that the driver of the powerboat was not state-licensed and, therefore, should not have been operating the boat. The camp did not adequately train the driver about camper safety. Additionally, the inflatable boat was carrying too many passengers, according to the manufacturer’s warning, and there was no adult on the pontoon boat to supervise the campers. Testimony of the camp staff revealed that they were not trained in boat safety and they did not know how to supervise campers who engaged in horseplay on the inflatable boat. Together, these elements led to the expert opinion that the camp breached the standard of care.

 

Components of Child Personal Injury Cases

Those responsible for the safety of children in every setting — school extra curricular activities, daycare programs, summer camps and other recreational after school activities — have a responsibility to prevent children from being exposed to unreasonable risk. Thus, teachers, coaches, and camp counselors who are charged with instructing shop, physical, or other high-risk activities must provide the children with the best possible instruction, along with appropriate and safe supplies, materials, and equipment suitable to the age of the child while following manufacturer warnings guidelines and precautions. Some of the components we address when reviewing child-injury cases is whether the child received appropriate and reasonable instruction; whether the equipment was inspected, safe, and appropriate for the age of the child; and whether the level of risk associated with the activity given the experience of the children was acceptable.

An important element to be considered is whether an injury or death could have occurred or been prevented if the person in charge of the child had performed supervisory duties properly. In other words, did the person act appropriate and reasonably under the particular circumstances? If improper conduct or failure to appropriately supervise can be shown, then proximate cause is usually associated. If the person in charge of a group of young campers was told that the children can never be left unsupervised, and that person deliberately leaves the group alone for any period of time, an injury can occur. This injury may be directly related to the failure of the staff person to adhere to the standard set by the camp.

For example, in a case for which Education Management Consulting, LLC, was engaged, a public school was operating a summer camp and the counselors were instructed that no child was to enter the school building unattended. The claim in this lawsuit was that a child entered the school bathroom unsupervised and was sexually assaulted by an older student. Upon review of the testimony, the camp’s policy, and the factors that led to the children being in the building, it was my opinion that the camp breached its own policy with regard to students entering the building and that the counselor failed to adequately supervise the children in his charge. This lack of appropriate supervision though implementation of established policy was the proximate cause of injury to the camper.

Courts have consistently held that camp counselors and persons supervising children in schools or other agencies have several responsibilities for those who are placed in their care. The first responsibility is to provide adequate supervision. The second is to provide appropriate instruction, and the third concerns proper maintenance of buildings, grounds, and equipment so that accidents can be avoided. These are parts of the degree of care necessary to avert unnecessary risk. To avoid injury to children, those in charge at a camp must know the safety rules and practice them diligently — throughout the day, day after day — to protect children from injury and the camp from costly litigation.

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

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

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

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

 

Duty Under In Loco Parentis

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

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

 

Professional Standard of Care

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

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

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

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

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

 

Training and Oversight are Essential to Avoid Residential Program Liability

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

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

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

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

 

Summary

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

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

Title IX and Sexual Abuse in K – 12 Schools

Hostile School EnviromentAs difficult as it might be to accept and understand, abuse of children is occurring at an alarming rate in our nation’s schools, daycare centers, camps, and other institutions. Even with state laws that require child abuse reporting and institutional policies that address sexual abuse prevention, identification, and reporting, abuse is not going away. More civil lawsuits are filed with each passing year, and schools and other organizations are not always appropriately responding to this epidemic.

At a school or any institution responsible for protecting the safety of children, the existence of a policy isn’t enough. It is evident from my involvement in such cases that when schools have adequate policies that are living documents — supplemented by training and a culture where all reports and rumors are taken seriously —children tend to be better protected. Children are more frequently harmed in a climate where reports of sexual abuse are discouraged, rumors are not taken seriously, and staff training is lacking.

According to a 2014 federal report, U.S. schools are failing to protect students from sexual abuse, and instances of district cover-ups, lack of staff training, and incomplete teacher background checks are not uncommon. The U.S. Government Accountability Office determined that K–12 schools lack a systemic approach to preventing and reporting sexual abuse of students, despite longstanding evidence of widespread sexual abuse at the hands of educators. A previous federal report had estimated that 9.6 percent of students are sexually abused by school personnel.  A school district may be liable for damages under Title IX if it fails to take action to stop known sexual abuse and harassment.

 

Appropriate and Immediate Response Is Critical

Based on my experience as an expert witness in school and institution administration, virtually every school district in the United States and Canada is, at some point, likely to hear rumors or receive a complaint about the sexual abuse of a child by a staff member. The safety of children depends on several elements. One such element is an adequate response by the administration, including prompt and adequate investigation and taking appropriate action to protect children from harm.

The professional standard of care requires that those responsible for the safety of children respond appropriately when there is an observation, report, or rumor of inappropriate sexual behavior between an adult and a child in a school. For example, when a librarian sees a teacher kissing a student in the gym, the librarian’s observation provides clear notice that the teacher is breaching the professional code of conduct and school policy. Any reasonable staff member would also conclude that it is more likely than not that the teacher and student are engaged in an inappropriate sexual relationship. The librarian’s responsibility would be to report the observation immediately to her supervisor, usually the building principal, and to report the behavior to the state agency that investigates allegations of child abuse.

Likewise, any observation, report, or rumor that children in school may be engaged in inappropriate sexual behavior with each other warrants an immediate response to protect children from harm. In some circumstances, student-on-student sexual behavior will be considered typical depending on the age of the children. For example, two 5-year-olds may expose themselves to each other with no intention of sexual abuse. On the other hand, if a vulnerable child with a disability is sexually touched by a nondisabled child of the same age, it might be considered abuse because of the imbalance of power between the two children. This also might be true when a much older child is sexually active with a younger child. Age, in this situation, creates the imbalance of power.

 

Supreme Court cases defining Title IX liability Following Sexual Abuse

In Gebser v. Lago Vista Independent School District, (524 U.S. 274 (1998)), the U.S. Supreme Court established standards for school district liability under Title IX when a sexual relationship occurs between a teacher and a student. The court found that a school district will not be liable unless: (1) an appropriate school official has actual knowledge of discrimination; (2) the school official has authority to take corrective action to address the alleged discrimination: (3) the school official fails to adequately respond; and (4) the inadequate response amounts to deliberate indifference.

In Davis v. Monroe County Board of Education, (526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999)), the Supreme Court established that a school district may be liable for damages under Title IX if it fails to take action to stop known student-on-student harassment. In Davis, the alleged conduct of the perpetrator student was outrageous, and despite repeated complaints of sexual harassment over five months, the student was not disciplined. In fact, the victim was not even allowed to change classes to escape the harassment of her classmate. Moreover, the board of education had not instructed its personnel on how to respond to peer harassment and had not established a policy on the issue.

Actual notice. Since the Davis decision, there has been a pattern of cases granting summary judgment to school districts on the basis of insufficient evidence of actual notice. However, the issue of what constitutes sufficient notice to the school is not yet settled. For example, in Doe v. School Administration District N. 19 (66 F. Supp. 2d 57 (D. Me. 1999)), it was found that the school had sufficient notice when a substitute teacher met with the principal to report that a female teacher “might be” having a sexual relationship with at least one male student. The principal allegedly told the substitute that she could be “sued for slander for saying those things” and declined to investigate. The court believed this verbal notice was sufficient where the alleged sexual misconduct was severe and where the school community was small (the high school’s faculty numbered 15). From the substitute teacher’s report, the administrator had a duty to conduct a sufficient investigation and, likely, to file a report with the appropriate child protective service in the state as well.

Insufficient notice was found in Turner v. McQuarter (79 F. Supp. 2d 911 (N.D. Ill. 1999)) where a female basketball player claimed to have been coerced into a sexual relationship with a female coach. Because the student and coach had the same home address, the plaintiff alleged that the university’s athletic director knew of the relationship. A district court concluded that it was difficult to imagine under what circumstances the identical addresses would have come to the attention of school officials. In this case, the court determined that unless there is sufficient notice or a report that a sexual relationship was taking place and that the coach and student resided at the same address, it would have been unlikely that the school would have found out on its own.

Deliberate indifference. The adequacy of a school or institution’s response once the appropriate officials have actual notice also has been examined. For example, in Kinman v. Omaha Public School District (171 F.3d 607 (8th Cir. 1999)), the Eighth Circuit Court of Appeals found that prompt investigation, corrective action, and ultimate termination was a sufficient response by a school district in response to allegations of a sexual relationship between a teacher and a student. After the student graduated, the relationship resumed, and the teacher was terminated for violating the district’s policy that prohibited teachers from engaging in sexual relationships with former students within two years of graduation. The court dismissed the Title IX claim.

How various courts respond to the issue of deliberate indifference is illustrated by Flores v. Saulpaugh (115 F. Supp. 2d 319 (N.D. N.Y. 2000)). A student’s petition survived the school district’s motion for summary judgment because a fact issue existed regarding the administrator’s response to the student’s complaints. In this case, the student and her parent complained to the principal of a teacher’s suggestive behavior toward the student. The principal promised to investigate the matter but did not do so, nor did he notify the Title IX coordinator of the complaint. Harassment, according to the student, continued for about a year after the complaint. In this matter, the court found a fact issue regarding the alleged indifference of the principal’s response. The court found that the principal had actual notice, effective at the time the student and her parent made their complaint. The principal also had corrective authority over the teacher. The court ruled that failure to investigate and to notify the Title IX coordinator constituted deliberate indifference, and the continued inappropriate behavior of the teacher may have caused harm to the student.

 

Rumors and Suspicions of Child Sexual Abuse are Enough to Warrant Action

How should a school respond to rumors of an inappropriate relationship between a child in its care and a staff member? Is a rumor sufficient to be considered notice? Schools can be sidetracked by the “logistics” of the rumor mill, short-circuiting a thorough investigation of what may, in fact, be an actual abusive relationship. For example, when a school principal knows that students are talking about a sexual relationship between a teacher and a student and are saying that the teacher and student have been texting and sending pictures to one another, the school must take these rumors seriously. Taking them seriously — that is, focusing on the alleged behavior as the genesis of the rumors rather than focusing on the way students are communicating (the logistics) — is key. I have seen too many situations where rumors were considered not credible — brushed off as children bullying each other — while an inappropriate relationship went on. It is important that reports of this nature are made to the state child protective agency so that specially trained and experienced individuals can conduct a thorough investigation. School officials are not trained to make a determination as to whether an allegation of sexual misconduct is substantiated or to determine that rumors can be dismissed.

In my practice, I have reviewed and analyzed the issues in numerous civil lawsuits as to whether a school or other agency met the professional standard of care in responding to rumors of sexual abuse. One of these cases involved the Texas City Independent School District in 2004. The district was accused of a breach in the professional standard of care, resulting in the sexual abuse of a preschool child by a classroom aide. This female student, because of her gender, was discriminated against when she was sexually abused. This was cause for a federal lawsuit under Title IX.

As the expert witness, I reviewed the case material, including sworn depositions, policies of the school district, records of the student, and information about the classroom teacher and aide. I determined that the teacher was not trained in the prevention, detection, and reporting of child abuse, including sexual abuse; the aide was hired without a proper background check and was not trained; the teacher allowed the male aide to supervise “bathroom time” with this girl, who had a disability, and the teacher wasn’t there to supervise. Another instructional aide in the class admitted having observed physical evidence that caused her to believe that the child was being sexually abused, but she failed to notify anyone about it and the abuse continued.

Although there was a policy in the school that addressed sexual abuse and reporting requirements, it was not implemented. Training was insufficient or nonexistent. The aide did not know how to report her concern. She did not know that she had a duty to report her observations to state child protective services and to the school administrator. The abuse continued until another professional also became concerned, at which time the matter was reported, investigated, and the aide was arrested. It was my opinion that this breach of the professional standard of care was a proximate cause of the girl’s abuse. Adequate training and supervision, in my opinion, would have prevented abuse of this child.

 

Summary
Sexual abuse of students is tragic, and its rate of occurrence is unacceptable. Schools and other institutions have a responsibility to protect the children in its care. Beyond policies, a culture of training, supervision, and adequate follow-through on reports of abuse against students is a proactive strategy for reducing the potential for harm to children.

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

injury from restraints at school

Liability for Student Injuries at School

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

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

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

Student Injury at School and Failure to Meet Standards of Care

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

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

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

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

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

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

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

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

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

Student Rights to Bodily Security

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

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

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

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

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.