July 21, 2017

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

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

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

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

 

School District Liability When an Outside Agency or Organization is Involved

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

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

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

Consider the following examples:

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

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

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

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

 

Questions That Help to Determine School District Liability and Duty

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

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

Child Injury and Daycare Negligence: Liability Expert’s Analysis

Daycare Negligence Expert

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

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

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

Child Supervision and Daycare Negligence

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

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

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

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

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

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

Daycare Accidents and Negligent Supervision and Training of Staff

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

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

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

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

Conclusion

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