September 24, 2017

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.

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

School Violence Lawsuits

Students and their parents have an expectation that schools will keep them safe from harm.

The uncertainties surrounding the Massachusetts teacher murder of Colleen Ritzer last month and the death of student Kendrick Johnson in Georgia earlier this year illustrate how the unexpected can occur and school safety and security is a serious concern schools administrators are faced with on a daily basis. Schools have a duty to protect students, and students and their parents have an expectation that schools will keep them safe from harm. In the school context, appropriate supervision compels a school to take proactive steps to provide a reasonably safe environment. The school is not expected to supervise every activity of its students every minute of their day, but when it has knowledge of circumstances that may pose an unusual safety risk, administrators are obligated to go beyond mandates to develop and implement standards of care that create a reasonable environment of safety. In this article, we will explore this idea through a couple of case studies.

Each school’s unique setting and student environment play a role in the development of appropriate policies and procedures designed to protect students’ safety. If, for instance, an urban school is located in a high-crime area with gang activity, the administrator has a duty to observe and assess the milieu and to develop a plan for keeping students safe. These procedures may include assigning school resource officers on each floor of the building, training staff in gang-related issues, or installing a metal detector at the door. If the school determines a metal detector necessary, then it has a duty to train staff in its use and maintenance.

Twenty miles away in a leafy suburban town, another school exists. Here, there is no gang activity, the crime rate is low, and an assault on a student or staff member has never occurred. In this context, a metal detector isn’t likely to be necessary, but — as with most schools around the country — the administrator will develop procedures to screen visitors. These procedures will likely require locked doors, a surveillance camera at the front door, and a buzzer. Under the procedures, the person screening the visitor may be required to ask specific questions, such as the person’s name and the purpose of the visit. Once a legitimate reason for the visit is established, the door is unlocked.

But even in a seemingly safe environment — with all the protection of armed officers, metal detectors, policies and procedures, and locked doors — a student or teacher can be seriously injured or, worse, murdered as recently happened in Massachusetts teacher murder.  In some cases, it’s easy to see where a school failed to pay attention to obvious dangers. In our urban school, an out-of-repair metal detector failed to pick up a weapon smuggled in by a teenager intent on killing a student in a rival gang. In other cases, it is more challenging to determine where or whether failure occurred. In our suburban school, a woman known to the screener said she was there to bring her nephew the lunch he left at home. After being buzzed in, the woman walked to a first grade classroom, pulled a revolver from a lunch bag, and killed the teacher in front of the students.

School’s Duty to Protect Students

At the school in the first example above, there was a recognized need for a metal detector at the entrance because of known gang activity and a past history of on-campus violence. The school made a decision to install a metal detector to protect students. Once that decision was made, it could be viewed as an admission that interventions are needed to curtail dangerous behavior. Therefore, the school also took on a responsibility to ensure that the metal detector was always working properly. If the metal detector failed and a student entered the school with a weapon and injured or murdered another student, then the school may face a lawsuit for neglect.

In the example of the second school, the administration determined that it needed only a front-door check-in system, based on its assessment of the environment around the building’s location. There had never been an assault in or around the school, so the risk of harm was deemed to be low. As with the urban school’s decision to use a metal detector, this school chose to implement a safety policy — this one requiring front-door screening. Once in place, that policy must be enforced, regardless of who is at the door.

Schools develop and implement safety plans to protect their students. Both schools in our example consciously took steps to do this. And yet, at both, someone was murdered.

An attorney’s Approach to Litigation Cases Involving Schools Safety and Security

Attorneys are advocates for their clients. In the case of the murdered gang member, the plaintiff attorney will argue that the school breached its duty to protect her client from harm, and this failure was a proximate and direct cause of her client’s death. A staff member was supposed to be on duty but was not. The lighting was less than adequate, failing to meet the local building code; the school hallway was overcrowded; and the metal detector failed. Together, she will contend, these were a recipe for disaster.

The defendant attorney, on the other hand, will argue that the incident would have occurred even if a staff member was in close proximity because the murder happened quickly and without warning. He will also admit that the lighting failed to meet the standard, but will add that it was adequate and even with better lighting the incident could have happened. As to the alleged overcrowding, the defendant attorney will argue that this had nothing to do with the incident and that, because of budgetary issues, the school was operating double sessions. Metal detectors and other security systems fail, but was the alleged failure a proximate cause of the incident? After all, the student could have thrown the weapon into the building through an open window and retrieved it after going inside.

Looking at the case of the suburban shooting, the defense attorney will argue that the school determined the level of security necessary to protect the students and implemented a standard of care. She will argue that there was no way the screener could have foreseen that a person known to the school would enter under false pretenses and kill a teacher with whom she had a neighborhood feud. The plaintiff attorney will argue that the school had a duty to conduct a stronger screening at the door, escort the person to the classroom, or call the student to the office.

Assessing Professional Standard of Care in School Violence Cases

In assessing liability, plaintiff and defendant attorneys should first determine whether a school met the professional standard of care under the circumstances. That standard begins with legally mandated requirements and cascades down to school policies and procedures. Professional standards may be required through statutes, ordinances, or regulations; set forth by relevant organizations, such as the National Fire Protection Association, American Academy of Pediatrics, American Camping Association, National Federation of State High School Associations, or U.S. Consumer Product Safety Commission; or constitute the customary professional practice of those conducting such activities or operating such facilities.

An attorney must assess the professional standard of care, the resulting duty, and whether the school met the duty. In this process, both plaintiff and defendant attorney should consider two principles:

1.            Compliance with standards does not necessarily entitle a school to summary judgment. Some standards may not have been adequate for the situation. When there is a known gang rivalry in the area or when a student known to have severe behavior problems is in the hall, having a teacher walk the hall between class periods may meet “compliance” but might not be the most appropriate standard under that circumstance. Appropriate action must be viewed in the school context and with an understanding of specific information about individual students. Customary industry practices are relevant for determining whether a standard has been met, but compliance alone is not determinative of the standard that a specific situation might require.

2.            If a school did not comply with standards, evidence of proper care is much easier to show. Some standards may not be related to the 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.

Foreseeability

In our two examples, can it be demonstrated that the risk of injury or death was foreseeable? To a reasonable administrator, could the murder of a student in a school where gang members roam the halls have been foreseen? Could action have been taken to prevent it? In the suburban school, could the murder of the teacher by a known visitor who was allowed entry to the building via a well-established procedure been foreseen? Could action have been taken to guard against it? School officials’ conduct cannot be considered unreasonable if the risk is unforeseeable.

The test of foreseeability is foresight. The administrator in these and other situations where safety is a concern must, from the circumstances, be able to foresee a danger to the student or teacher that presents an unreasonable risk necessitating protection from harm.

The gang murder case illustrates this point. In this school, it was well known that there was a high level of gang activity in and around the school. Teachers recognized the wearing of colors representing rival gangs and were on heightened awareness of the potential risk of harm to students when disputes erupted between gang members. The school was undergoing a large construction project that forced students to be re-routed through a tunnel between classes. The unusual traffic pattern created by the construction provided less visibility and more crowded conditions, and this, coupled with the gang activity, prompted a decision that a staff member would be assigned to the tunnel for extra supervision. Thus, the school did foresee the potential for danger that presented students with an unreasonable risk of harm.

The standard of care established in this circumstance was that the school was to have a supervisor posted in this location to watch for danger and intervene where necessary. But on the day of the murder, the school breached its own standard of care by not assuring that a supervisor was there. In the unsupervised tunnel, an argument erupted between two rival gang members, a weapon was drawn, and a student was killed.

Looking at the case of the suburban shooting, the school appeared to do everything right. It followed its duty by screening the person — but someone was still murdered. Could it have been foreseen that a personal disagreement involving a staff member and a neighbor would spill over in a classroom full of children? A reasonable school administrator would be unlikely to conclude as much.

Proximate Cause

Before a school can be held liable for alleged negligent conduct, it must be proven that the negligent act caused the injury. Mere occurrence of an incident, like the murders in our examples, does not support an inference that the school was negligent. The plaintiff has the burden to prove that the school was negligent by its action (or failure to act), resulting in injury or death.

Thus, in contrast to the test of foreseeability, the test of proximate cause is hindsight. Would the incident have occurred if the school had acted appropriately and within the professional standard of care in the circumstance?

In our examples, both attorneys can apply the probable consequences rule. According to this rule, the school would be liable if an incident was the natural and probable consequence of one’s negligence. In the urban school, a reasonable administrator might conclude that the school is at fault because it had notice of the danger and set out to protect students by establishing standards, yet failed to meet its standards of care. In the suburban school, the school set out to protect students from danger, put a procedure in place, and followed the procedure and its standard of care — yet the murder still occurred.

Summary

Schools have a duty to keep students out of harm’s way. Most often, they succeed. However, even when protections are implemented, a student or teacher can be seriously injured or murdered. For attorneys, assessing the merit of filing a lawsuit or the strength of a defense hinges on a clear determination of three elements: the professional standard of care; the duty of the school; and whether it was foreseeable that a student or teacher could be hurt or killed if the school breached the standard.

Through this process, it will become easier in some cases to see where a school failed and injury or death resulted. In other situations, it will be evident that the school took every reasonable step despite the occurrence of an injury or death. Analysis of the facts, as seen through the eyes of a reasonable school administrator, can hold the key to whether to file, strongly defend, or settle school liability cases.

3 Questions in the Wake of the Sandy Hook School Shooting

Children and parents should never have to experience the pain and suffering that was brought down on them in Newtown, Connecticut. What went wrong?

By all accounts, Sandy Hook Elementary School had appropriate safety measures in place. Doors were locked when class started. There was a system to check visitors before they were allowed in the building. Teachers were well trained and knew what to do in this type of emergency. There had been lockdown drills and safe places were established for children and teachers to go. Everything was done right.

There was nothing the school could have done differently to prevent this horrendous incident. No one could have predicted that a person with mental health issues, armed with an assault rifle and two other semi-automatic weapons, would shoot out the glass and force his way into the school. This is neither the type of school nor a community where a security guard is needed at the entrance. The safety measures were appropriate. The staff implemented them, went into lockdown mode, and protected their children the best they could — sometimes acting as human shields.

There are three things that we must ask ourselves as a nation after this tragedy:

  1. Are schools developing and updating safety plans on a regular basis with the involvement of parents, teachers, and the community?
  2. Are we providing sufficient mental health services in our schools and communities — and had the shooter received such services, is it possible that this would have been avoided?
  3. Is it necessary to allow semi-automatic weapons in the hands of civilians?

Safety in schools

A good school safety plan is a detailed blueprint of procedures designed to keep children safe during normal school operations and in an emergency.

It should include such things as: the chain of command; where school safety agents normally stand; visitor-screening procedures; how to report an intruder; how to cover lunchrooms if staff are absent; and provisions for security before school, while classes are in session, and during after-school community programs.

Even the best safety plans are worthwhile only if a school community is familiar with their provisions. Staff and students should know clearly what to do in everyday situations — and during a crisis.

Every school should prepare a safety plan, review it annually, and update it as the school’s needs change. It should distribute a school safety handbook to all staff and parents annually. A strong board of education policy and adequate funding to support a school safety committee are necessary.

The very lives of our children are at stake.

Mental health services

What causes me the most concern is the emerging information about the shooter as a troubled individual. A full picture is not yet available, but reports suggest he had Asperger’s syndrome, had a history of difficulty getting along with classmates, was home schooled, and eventually dropped out of school. His mother reportedly was not pleased with the way his high school dealt with his disability, and this seems to be why she withdrew and homeschooled him. Often, children with Asperger’s syndrome are misunderstood, shunned, or bullied because of their different way of interpreting social interactions. If they are not taught how to improve their social interactive skills, and if other kids misunderstand and ostracize them, it can lead to frustration and anger.

Schools generally provide some level of services for students who experience mental health or other issues that generate from a disability. But through the consulting work I do with schools and my expert witness services with attorneys, I have found that it’s never enough — no matter whether the school is in an affluent community like Newtown or the inner city. The level of services depends on the school budget, which often depends on a community’s ability to support the budget. Poorer communities don’t provide much service.

Students who don’t get along with peers usually get branded troublemakers. Standard discipline — detention and suspension — without attempting to deal with the root issues leads only to despair for the student and continued problems in school. When troubled behavior repeats itself, there’s a need to find out what is causing this student to act out, help this student understand what drives his behavior, and take steps to change it. This isn’t always easy to do. When schools don’t have the baseline resources to even consider this kind of intervention, we are on the path to losing our kids and laying our children open to being hurt.

Parents don’t usually tell others about the trouble their child brings into the family. Families keep these secrets, and sometimes, frustration builds either to the Hook of giving up or dealing with the child in counterproductive ways. These parents need help. They need to understand why a child behaves in a way that causes others to be fearful of her. They need tools that will help them at least try to work effectively with a child so that their actions do not exasperate the problem behavior.

Parents also need to know that they can’t always do it alone, and that it’s okay to ask for help. They need to feel comfortable about seeking help, and they may need help paying for these services. We need to remove treatment barriers imposed by one’s type of insurance and by insurers’ level of payment to mental health professionals.

The very lives of our children are at stake.

Gun control

I’m not going to wade into the gun-control debate, other than to say that the Second Amendment was written at a time when the militia used muskets that took several minutes to reload — not semi-automatic rifles that spew dozens of bullets in a few seconds.

In this situation, a young man with a history of social-interactive problems and little, if any, mental health support, had access to his mother’s legally registered weapons — and acted on whatever compulsion or illness drove him. If the shooter, disturbed as he may have been, had not had access to that weapon, parents today would be thinking more about their child’s upcoming winter break than whether they are doing the right thing by even sending their child to school.

Is it necessary to allow semi-automatic weapons in the hands of our civilians?

The very lives of our children are at stake.

Healing

Newtown, Connecticut, will heal, but this horrible tragedy is a reminder that we have work to do. I would like our nation to remember that while schools are, by and large, safe places, it takes the involvement of all of us to make them so. I would like our nation to focus renewed energy on the provision of, and equitable funding for, mental health services to kids and parents. I would like our nation to have the courage to take real steps toward effective gun control.

Schools are safe places for our kids. Let’s make them even safer by focusing on what we can learn from this sadness.