May 28, 2017

Student Injury and Standard of Professional Care Analysis in Schools

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

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

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

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

 

Student Injury Lawsuits and Professional Standards of Care

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

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

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

 

Professional Standard and School Liability

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

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

Assessment of Liability: Child Abuse and Injury in Residential Care

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

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

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

Reasonable and prudent parent standard

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

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

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

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

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

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

Standard of care for residential and boarding schools

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

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

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

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

Expert role in assessing standards of care

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

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

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

Real case examples

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

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

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

Private School Lawsuits: Contractual v. Constitutional Standard of Care

Sexual abuse in private schools

In private schools, academic and conduct issues involving students raise contractual as opposed to constitutional issues.

The relationship between private schools and their students is very different than the one that exists when a student is in a public school. In private schools, the relationship is contractual in nature. The contract is expressed or implied in written documents, such as promotional literature, student applications, and student and staff handbooks. By contrast, the relationship between public schools and students is governed by federal and state statues, such as the Individuals with Disabilities Education Act and Title IX. In public schools, students are afforded constitutional, substantive, and procedural protections that are generally not applicable in a private school. In private schools, academic and conduct issues involving students raise contractual, as opposed to constitutional, issues.

This article will present standards that should be considered by an attorney representing a plaintiff or defendant in private school lawsuits and while assessing the rights of private school students regarding academic matters, discipline, and the right to an education.

Contractual vs. Constitutional Standing

Private school students do not enjoy the wealth of constitutional rights afforded to students in public schools. Public schools are generally treated as governmental institutions, and various statutes protect students against discriminatory actions by governments. The private school, however, is not an arm of the government. Therefore, private schools do not have the same responsibility a public school has to provide a student with a disability an appropriate education, for instance, or to protect a student from harassment, intimidation, and bullying.

Private school students and their parents, however, have come to expect due process if they perceive that their rights have been denied. Relying on the framework of public-sector rights will often focus dispute resolution in a private school on concepts of fairness that mimic due process in public institutions.

Due process means that people will be given an opportunity to tell their side of the story before an authority makes a decision. There is the expectation that students will be treated fairly and will be subject to rules that are fair and consistent for everyone. In the public school sector, this is identified as procedural and substantive due process rights. In private schools, a 1993 case in Louisiana (Ahlum v. Administrators of Tulane Educ. Fund) validated the expectation that rules and processes be clearly stated and that they are neither arbitrary nor capricious.

In a private school, the expectation of fair treatment is viewed in a contractual context: Unacceptable conduct by a student may result in penalties, discipline or sanctions. The language contained in private school promotional materials, admission applications, student and staff handbooks, and other documents forms the basis for such a contract, and the standards articulated in these documents form the basis for determining whether a private school met a professional standard of care. If the language in these documents is concise, unambiguous, and supported by the school’s mission and goals but the student breaches this contract, then the school can act within the confines of the document without retaliation from the student. Whenever these documents create conflicting or ambiguous standards, however, students are likely to contest any discipline on the basis that they have been treated unfairly.

Illustration of Successful Private School Lawsuit

In a prestigious private church-related school, a coach and student were having a sexual relationship. The coach was fired and the student remained at the school. Firing the coach was appropriate and met the school’s standard of care. In the school’s written employment agreement with the coach, there is specific language prohibiting such behavior and outlining the consequence: immediate termination. In addition, the staff handbook clearly identifies prohibited behavior between a staff member and a student. In this situation, there could have been no successful challenge by the coach.

The behavior between the coach and the student was reported, investigated, and found to have merit. He was arrested after admitting guilt. The coach left the school without a challenge. The student, on the other hand, remained at the school. Jessica was a year and a half out from graduation and intended to apply to several colleges based on her excellent grades and competitive success in sports. As soon as the story hit the media, her classmates began harassing the girl, saying, “Why did you ruin Mr. Hank’s career?” “You should have kept quiet. Now look what you’ve done.” “You ought to leave the school.” The talk became so open and abusive that some teachers told the administration that it impeded their ability to teach. Jessica’s continued presence, they maintained, caused such disruption that other students were losing out. Wanting to quiet things down without generating more media attention, administrators met behind closed doors and developed a plan to extract Jessica from the school. Without her, they concluded, the problem would go away and the administration would be able to focus on recruiting other students.

Jessica, meanwhile, continued to be victimized by those she thought of as her friends. The headmaster called Jessica’s father and asked him to come to the office to talk about how the school can curtail the “disruptive” talk among the students and what to do to help Jessica. What parent wouldn’t want to meet with a school official to put an end to his child’s harassment?

Jessica’s father showed up at the headmaster’s office ahead of schedule, anxiously wanting to work with the school to help his daughter. He was invited into the administrator’s office, where he was greeted by the headmaster, the dean of students, and the attorney representing the school. The headmaster told Jessica’s father that she was no longer welcome at the school. She needed to leave, he was told — now, mid-way through the school year — and she would not be allowed to return for her senior year. The headmaster also told Jessica’s father that the school would not write favorable recommendations to colleges. On the other hand, he was told, if he signed a withdrawal agreement immediately, the school would return one half of the year’s tuition, would support her application to another high school for her senior year, and would write favorable letters to colleges later.

Jessica’s father wasn’t prepared to be blindsided. Under the pressure of the situation, he did not consider that the school had very clear policies against student-to-student harassment, intimidation, and bullying. The student handbook clearly prohibited students from intimidating or spreading rumors about one another, making Jessica’s treatment by fellow students in violation of the school’s standard. The student code of conduct called for suspensions of students who engage in such behavior. If the behavior was severe enough or if it occurred a second time, the student could be considered for expulsion. The handbook and code of conduct did not provide for disciplining or expelling the victim of such behavior. Under pressure, Jessica’s father signed the agreement and took his daughter out of the school that day.

He later had second thoughts, realizing that he had been coerced by a school more concerned about its economic future than Jessica’s emotional future. Because this was a private school, the administration had the right to determine whether Jessica would be accepted back for her senior year. However, the school had a duty to follow the professional standard of care it defined in its own promotional materials, student application, and other documents.

Thus, Jessica had been wronged by the school twice — once when it failed to protect her from the coach’s abuse and a second time when it expelled her. She didn’t return, but with the help of an attorney Jessica’s father filed a lawsuit against the school. A jury awarded Jessica $12.5 million in compensatory and punitive damages based on emotional and academic harm. Let’s take a closer look at this case.

Assessing Private School Claims

An attorney representing a plaintiff or defending a private school should follow these steps when assessing a case such as this:

  1. The standard. The standard that must be applied in a private school is derived from the school’s own documents, such as its promotional materials, statements on student applications, teacher and coach handbooks, student handbooks, and disciplinary codes.

The private school in this example was very clear in its promotional materials and student handbook. In its brochure, the school’s stated goal was to promote the well-being of its students and, to that end, it touted a program described as supportive — one that encourages friendships and discourages inappropriate interactions between students such as harassment, hazing, and bullying. The student handbook clearly stated that no student shall spread rumors about another student and that no student shall harass, intimidate, or bully another student. The school provided information about its policy at an assembly at the beginning of each school year, and every student and parent received a copy of the policy. The student code of conduct reinforced this policy, stating that students found to be spreading rumors would be subjected to discipline, including a suspension of up to three days. A student found to be harassing, intimidating, or bullying another student in a way that interfered with another student’s education or school life would be suspended immediately for three days. If it happened again, the aggressor would be considered for expulsion.

  1. Breach of standard. Once it is established that the school has a standard of care, the next element to examine is whether it breached that standard by the actions or inactions of its administration and/or other employees.

Knowing what was occurring among the students will indicate what the school, through its administration, knew and whether its policies were being violated. In this case rumors, harassment, intimidation and/or bullying were known through the reports of the teachers, students, and other observers. Documentation in the form of written reports, disciplinary action taken toward any student, and letters to parents and students all form the basis for analyzing how the school met its duty according to its policy. Did the school appropriately respond to reports of rumors? Did the administration investigate the reports of harassment, intimidation, and bullying of Jessica according to its standard? What did the school officials determine — and did they appropriately and reasonably apply its policies?

  1. Harm to the student. If a private school breached its own established standard, then the next element to review is damage, if any, to the student. This damage can be academic or emotional. If there was no breach of standard, there might still be harm but that harm might have been caused by an intervening variable. The school might successfully defend against harm caused by external factors. On the other hand, if the school breached its own standard, ignored its own policy, or acted outside the contract it had with students and parents, and if it can be argued that this breach caused the student harm, the plaintiff may prevail.

If a student stays home for a period of time because other students’ intimidation, rumors, or bullying made her fearful of going to school, it might be argued that the student was not able to access her education as per her contract with the school. Further, it may be argued that this situation caused damage to the student through the school’s breach of its own contract or policy. When a private school publicly states that it does not tolerate intimidation and that it has a process for disciplining students who engage in such behavior, it has a duty to fulfill that contract. If the school chooses instead only to focus on its concern for negative publicity, an argument can be made that the school focused on the wrong thing, breached its own standard, allowed the harassment to continue, and permitted the student to suffer academically and emotionally.

Summary

The rights of students are different in private schools than in public schools. In private schools, contractual rights prevail, and those rights are determined through explicit and implied agreements in documents produced by the school. In determining the merit of filing an action, plaintiff’s attorney should review these documents and focus on explicit language that leaves no doubt of a contract between the student and the school. When defending against a claim in a private school, defendant attorney should review the language of these same documents and be able to argue that the school did not act in an arbitrary or capricious manner.

Bullying in the US and Canadian School Systems: The Legal Standard

Antibullying Programs

Legal Standard of School Bullying in US and Canada

Bullying Legal Standards

Over the last several years, U.S. states have enacted laws that require public schools to develop policies and procedures to stop bullying.  New Jersey may have the toughest anti-bullying law in the nation, requiring schools to include in their policies that a teacher can be disciplined for not reporting bullying. Like other states, New Jersey requires that administrators report to the board of education and to the state department of education the extent and type of bullying that occurs in their schools and to certify they have specific programs in place to educate students about bullying.

In Canada, each province has passed laws that, in varying degrees, address bullying in public and Catholic schools. Perhaps the best example of protective legislation is Ontario’s Accepting Schools Act, passed in 2012, which was developed in response to several suicides of bullied students. The act defines bullying behavior as including psychological, social or academic harm and harm to an individual’s reputation.

On Sept. 13, 2013, Manitoba passed the Public Schools Amendment Act (Safe and Inclusive Schools), which requires public and private religious schools to create a “respect for human diversity policy” that protects student organizations wanting to create clubs that promote antiracism, respect for people with disabilities, or awareness and understanding of people of various sexual orientations. The new law builds on Manitoba’s 2004 Safe Schools Charter, which says that bullying or abusing someone physically, sexually or psychologically — verbally, in writing, or otherwise — is unacceptable and requires that all schools develop codes of conduct and emergency response plans, and review them regularly.

To understand the law as it pertains to bullying in the United States, let’s look at two important U.S. Supreme court cases.

In Gebser v. Lago Vista Independent School District (1988), the Supreme Court ruled that bullying, in some instances, constitutes sexual harassment. The original case, over an off-campus incident, involved a perpetrator who was a school employee and an underage student victim. The girl brought suit against the school district, but failure to produce reliable proof that the school knew about the incident resulted in a lower court ruling in favor of the school. The fact that someone in a position of authority over the young person constituted harassment, the Supreme Court ruled, but because the school did not know about the bullying or harassment, it could not be held liable. Had it known and done nothing to stop the abuse, the school could have been sued, with particular defendants named in the case.

This ruling should send a clear message to schools that, in some cases, bullying is legal harassment, and that suits can be brought forward and won on a preponderance of the evidence if it is shown the school or school officials were negligent in bullying cases — even in off-campus incidents.

In Davis v. Monroe County Board of Education (1999), the Supreme Court determined a school board was liable for student-on-student harassment when the school acts with “deliberate indifference” toward the bullying act. This court essentially concluded that the harassment in this case was so severe, it prevented the student’s access to an equal opportunity in education or benefits. While this decision provided some legal framework for a school board’s liability, the court reminded schools that this framework did not exonerate them from the responsibility of doing the right thing.

These two cases teach us that bullying constitutes harassment when schools either know about the bullying and do nothing to stop it, or allow an incident of bullying to get so severe that it gets in the way of a student’s right to a free public education and opportunity. In layman’s terms, negligence is knowing what to do to prevent a problem but choosing not to act. Adults, in their standing in the school, have a responsibility and an obligation to kids, parents, and the community to stop any type of harassment or bullying whenever they see it.

The underlying theme is that administrators and teachers are responsible for what happens in their schools and that they have a moral, ethical, and legal responsibility to do something about bullying whenever it occurs. The bottom line is: When an incident of bullying is brought to their attention, do they sweep it under the rug or do they deal with it and punish the offenders? How well they can honestly answer this question will determine whether their argument will stand up in court or not.

What is Bullying?

There are standards that an event must meet to constitute bullying that can result in legal action. This is the general rule or “harassment test” that determines whether a student or another person is guilty of harassment. The bullied student must be identified in a specific group, identified by gender, race, or disability, and the harassment must be based on discrimination law regarding the specific group. The harassment must be so severe that it hinders the student from carrying on in a manner that would allow him or her to continue their education or engage in certain pursuits without the fear of being harassed. In a bullying case, it must be shown that a school official had knowledge of the harassment, did nothing to end it, and did not implement its student code of conduct to discipline the perpetrator or remove them from the victim — thereby allowing the harassment to continue.

There is no legal definition of bullying. In the school context, bullying can be a severe single occurrence intended to hurt someone physically or emotionally. More often, bullying is a series of events that, over time, creates an ongoing pattern of harassment. If bullying cannot be controlled in school — if we can’t stop the bully — then, typically, civil charges can be filed against the bully. These charges are harassment or harassing communications, which are misdemeanor cases.

In the United States, laws and terminology differ from state to state, but if a child has been threatened, the bully may be charged with “threatening behavior.” If a child has been sexually assaulted, the bully may face an “indecent assault” offense. If a child has been physically assaulted, then the bully may be charged with “criminal offense of assault.”

In Arizona’s Protection from Harassment Act, two criminal offenses could be applicable to bullying: harassment and the offense of putting people in fear of violent acts. In this circumstance, prosecution cannot proceed unless the harassment has occurred more than once.

While there is no offense termed bullying under the Canadian Criminal Code, many behaviors or incidents characterized as bullying fit the definition of criminal offenses. These include, for example, criminal harassment (CCC 264), uttering threats (CCC 264.1), assault (CCC 265 & 266), and sexual assault (CCC 271). Perpetrators may face juvenile or adult sentencing, depending on the circumstances of a crime.

In numerous situations, students have been charged for their role in bullying, but the lack of a legal definition of bullying defines a key difficulty in criminalizing bullying: What standard should be used? Does the state or province base the charges on the nature of the bullying itself — or on the response of the victim? In other words, are charges brought, for instance, under a criminal stalking law against when student who follows and relentlessly harasses another? Or is the student charged with criminal harassment only when the bullied student becomes sufficiently fearful for her life?

Are Antibullying Programs Working?

School should be a place where children feel safe and secure — a place where they can count on being treated with respect. Even with new canned programs and tolerance efforts by schools, however, the unfortunate reality is that many students are still targets of bullying. School personnel continue to minimize or underestimate the extent of bullying and its academic, physical, and emotional consequences. As a jury in Indiana concluded this week, bullying is often tolerated or ignored. In this case, a 15-year-old girl arrived at school one morning to find pictures posted around the school that had been edited to show her in a sexually suggestive manner. The girl’s family claimed that the school district was negligent in how it handled the incident and failed to offer proper counseling to the girl as she struggled to recover from the incident.

Ask junior high school students if they have witnessed bullying or have been victims of a bully over the past several weeks, and you will find not only that bullying is still occurring but also that it has been taken to the cyber playground — where it is more difficult to observe and control.

Antibullying programs that are now common in schools may be having the opposite of their intended effect, according to new research from the University of Texas–Arlington. In a study published in the Journal of Criminology, researchers found that students at schools with anti-bullying initiatives are actually more likely to be victims of bullying than students who attend schools without such programs. This raises the question as to whether bullying behavior has changed in schools. The authors speculate that while bullies may have learned a variety of antibullying techniques, their dominant social status may compel them to ignore the problem-solving skills they have learned through antibullying programs. Thus, they suggest, prevention strategies may be more effective if they are developed around the bully-victim dynamic.

To be sure, antibullying programs have increased awareness of the problem. Increases in both the incidence of the reporting of bullying and media accounts of bullying-related litigation suggest that we as a society have taken note of the harmful effects of bullying. And this is a good thing. From awareness comes action — hopefully, that changes the cultural landscape of our schools so that all students feel welcome and safe no matter their sexual orientation, disability, national origin, or other things that might cause a bully to prey on another. A welcoming community that accepts diversity and teaches empathy is, in my opinion, what is necessary in our schools if we are to protect children from the harm of bullying.

Who is the bully?

Today’s bully isn’t just the schoolyard punk who shoves other kids around. It’s the seventh-grade girl who tells lies about a classmate to keep her out of the “girl group.” It’s the handsome student council president who pushes a wheelchair-bound child into a wall. It’s the 10th grader who says something on Facebook about someone that she wouldn’t have the guts to say to her face. It’s the aide on a school bus who sexually molests a 4-year-old while sitting next to him. It’s the teacher whose punishment of a student doesn’t fit the “crime.” Bullies can be athletic, academically smart, attractive, and cunning. School administrators don’t see them in the crowd. They blend in and work under the radar. They bully when no one is looking and they intimidate their victims, who are too afraid to tell.

Bullying a Public Health Issue

Bullying in school is a significant public health problem. Physical aggression has been linked to an increase in injuries, violent crime, school adjustment problems, substance use, and mental health problems among kids. The 1998 U.S. Health Behavior in School-aged Children survey first identified bullying and victimization as significant problems, noting that victims are more likely than kids who have never been bullied to perpetuate the cycle because they often perceive violence as a solution to their problems. This prompted an increase in school-based bully-prevention efforts.

The recent suicides in Canada of Amanda Todd in British Columbia and Rehtaeh Parsons in Nova Scotia underscore the point that, unfortunately, teens will take desperate measures when bullied, harassed, and humiliated by peers. While there is a strong association between bullying and suicide, other public health influences, such as depression and delinquency, contribute to suicide-related behaviors. This understanding led mental health experts writing in the Canadian Medical Association Journal to call for school-wide interventions after a student suicide rather than focusing prevention efforts on the close friends of the suicide victim. The journal’s editors concluded that bullying among youth is a significant public health problem and that public health strategies can be applied to prevent both bullying and suicide.

Where do we go from here?

The school bully has been around forever. The stereotypical bully — the schoolyard tough guy who is quick to fight, intimidate, and threaten for his own gain or to look good in front of other kids — has become so much a part of the school environment that, in some situations, school administrators consider this intrusion into the school culture as the norm. This response is unfortunate in light of today’s understanding about the scope of bullying and the psychological damage it inflicts — up to the point of suicide.

There are lots of programs — some effective and some not so effective — that attempt to change mean kids into kind helpers. But these, in my opinion, don’t change the core of an individual who just doesn’t have empathy for another. Laws and school policies, training and punishment for bullying and lawsuits might cause students and school districts to sit up and take notice. We need these elements if we are to continue moving in the direction of creating schools where kids feel safe and can learn without looking over their shoulders for bullies.

Wrongful Death Lawsuits against Schools and Agencies

liability in wrongful death school cases

Wrongful Death School Lawsuits

The death of a child is always emotionally difficult for parents, relatives, and caretakers. Often, an allegation arises that the death resulted from the negligence or misconduct of the person responsible the safety of the child.  In wrongful death lawsuits against schools and agencies determining the merit of such an allegation hinges on sifting out the emotion and focusing on facts: Did the school or agency have a duty to protect the child, were standards of care followed, were those standards breached, and did the breach result in a child’s death?

When the child is in school, a daycare program, or camp, the school or agency has a duty to protect the child by providing appropriate supervision. When there is an allegation that a school or agency breached that duty and a child died a wrongful death, a claim may ensue. This article will provide guidance for attorneys who are considering filing a wrongful death complaint or who must defend a school or agency against such a complaint.

According to the 2012 National Vital Statistics Report of the Centers for Disease Control and Prevention (CDC), 1,296 c    children between ages 5 and 14 died in 2011 from accidents other than motor vehicle accidents, assault, suicide, and medical diseases. Although the CDC does not specify exact causes of death within this population, it is reasonable to assume that many occur while children are under the supervision of an adult in a school or other agency. In its Indicators of School Crime and Safety 2012 report, the U.S. Department of Education tallied 31 student, staff, and nonstudent school-associated violent deaths during school year 2010–2011. It is likely that some of these deaths are wrongful deaths, which are those that can be attributed to the negligence or misconduct of another individual. In a school or agency, that individual can be a supervisor, another student, or a third party.

To bring a successful wrongful death cause of action, all of the following elements must be present:

  • The death of a human being
  • Death caused by another’s negligence or intent to cause harm
  • Survival of family members who suffer monetary losses as a result of the death
  • The appointment of a personal representative for the decedent’s estate

For a school or agency to be found liable for the wrongful death of a child, the school or agency must have had a duty to care for the person who died and breached that duty, resulting in the child’s death. The death, in turn, must be shown to have caused injury or loss to others, such as surviving parents and siblings.

In the context of schools and other agencies, wrongful death claims can arise from any number of situations. Some examples include: a bus accident; a child falling from a cliff during a field trip or drowning in a swimming pool; a 300-pound, fold-up lunch table falling onto a child from a cafeteria wall; a student being shot and killed on school property by the school security guard; excessive discipline (e.g., putting a disruptive student to the floor and sitting on his back, resulting in suffocation); or administering the wrong medication. Unfortunately, these represent only a small sample what might cause of the death of a child.

Conditions for Liability in a Wrongful Death Case

A school or agency may be held liable for the wrongful death of a child in the same way that it may be held liable for the injury of a child. The conditions are the same — but the ultimate result is death, and damages are focused on survivors rather than the party who sustained the injury.

A plaintiff or defendant attorney should consider the following questions when considering the merit of filing a wrongful death complaint or mounting a defense of a complaint:

  • Did the school or agency have a duty to protect the decedent in the particular situation?
  • What was the reasonable standard of care to apply under the circumstances, and did the school or agency apply that standard?
  • If there was a breach of this standard, was it a significant factor in causing the death?
  • Were there intervening variables that may have prevented the proximate cause of injury or death?
  • Did the child who died contribute to his or her own death through self-negligence?

Duty to Protect

Those responsible for the safety of children have a duty to anticipate potential and foreseeable dangers and to take reasonable precautions to protect children from those dangers.

For activities that take place during the normal course of the program day, the duty to protect is usually easy to prove. Courts have held that this duty may apply beyond the grounds of the school or other agency, depending on the circumstance. For instance, the school or other agency may have a duty to protect children during a visit to a park from wandering into a busy highway.

Failure to Exercise a Reasonable Standard of Care

In the Houston Independent School District, construction was taking place on a junior high school campus. A tunnel linked the old and new portions of the building. A school policy required that a staff member be present at both ends of the tunnel to supervise students and to be aware of any behavioral issues that might lead to the harm of a student. This was determined to be an appropriate level of supervision.

A student in the tunnel died after he was attacked and struck in the head with a screwdriver. On the day of the attack, one teacher who was assigned supervisory duty called in sick and the school failed to replace him at the post. As the expert witness in this case, my opinion was that this was a failure to exercise the school’s own standard of care and the professional standard of care in the field.

If a supervisor does not take reasonable steps to protect a child from injury, that person and the employer can be found negligent. Courts will weigh the actions of the employee against how a reasonable employee in the same position would have acted in a similar circumstance.

For instance, would a reasonable supervisor tell children to cross a street to meet her at a park entrance when that entrance is across a busy highway without a crosswalk? More than likely, a court would deem it irresponsible for a supervisor to instruct children to meet her across the highway at a location that a reasonable supervisor would consider dangerous.

Proximate Cause

If a child entered the roadway, was struck by a motor vehicle, and died, attorneys would need to determine all the facts. These may include intervening variables, like vehicle failure or road-design failure, to mount an effective strategy.

This illustrates another important question to consider: If the supervisor failed to exercise a reasonable standard of care, did this failure result in the child’s death?

The ability to prove this element depends on establishing that a child’s death could have been reasonably foreseen and prevented. If the death could have been anticipated and prevented by an employee through the exercise of a reasonable standard of care, legal causation may exist.

The question for the attorney to ask is whether the death of the child was a natural and probable result of the wrongful act and should have been foreseen by the supervisor in the context of the circumstances.

Revisiting the example above, it may be established that a reasonable child supervisor would have observed that vehicles were traveling at a potentially dangerous speed and that there was no crosswalk at the location where children were gathered. If the children were 5 or 6 years old, a reasonable supervisor would understand that they would not have the capacity to protect themselves from harm because of their age. A reasonable supervisor would consider that if she directed the children to cross the roadway at this location, it is foreseeable that a vehicle could strike a child. A jury could determine that the supervisor’s decision to instruct the children to cross the street was a deliberate action that placed the child in harm’s way and was the proximate cause of the child’s death.

A wrongful death claim will not be successful if the death could not have been prevented. If the supervisor in our example gathered the children together when they left the bus, escorted them to the corner, observed that there was a traffic light and crosswalk, instructed the children about the dangers of crossing the street and the precautions to take, and then instructed them to cross when she was sure the traffic stopped, the supervisor would have acted reasonably under the circumstances. Now, let’s suppose that a car failed to obey the stoplight, hitting and killing a child. In this situation, a jury may determine that the supervisor did everything possible to protect the child, and that a third-party act was the proximate cause of the child’s death. The unavoidability of the accident, in other words, nullifies proximate cause.

Contributory Negligence

If it can be shown that a child contributed to his or her own death, the school or agency may invoke contributory negligence, a common defense against liability. If the court holds that contributory negligence was a factor in the child’s death, the school or agency may be held only partially liable or not liable at all, depending on the jurisdiction.

Take the case involving the drowning death of several students attending a leadership conference at a youth camp in Chicago. My review and analysis of the facts led me to conclude that the students, because of their age and capacity to understand the dangers, were able to guard their own safety but made decisions that inevitably lead to their death. Thus, the camp, in my opinion, was not responsible.

The students left their cabin after their supervisor was asleep, went down to a river that was clearly marked with warning signs, and placed several boats into the water. The boats began to sink, causing students to abandon the boats and drown. The school sponsored the event at the camp and as such had the responsibility to supervise the students during the day and at night, but did not place the appropriate number of supervisors in the cabin at night. Therefore, I concluded that the school and the students bore responsibility for their deaths.

Contributory negligence is difficult to prove among children between the ages of 7 and 14, unless it can be shown that a student is unusually intelligent and mature. In this case, the students were 17 and 18 years old and were selected from their peers to participate in this leadership-training program because of their intelligence and maturity.

Summary

Because these claims are emotional, it can be easy to jump to a conclusion. The plaintiff or defendant attorney should review potential negligence issues in a step-by-step manner to determine the merit of a claim or strength of a defense.

Duty to supervise, reasonable supervisory care consistent with the standard required in the field, breach of duty, and contributory negligence are factors that can present a roadmap to effective litigation. An expert witness can assist plaintiff and defendant attorneys with a thorough analysis of these issues.