June 24, 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.

School Safety and Security: Responding to Terroristic Threats

student secuirty

In the wake of recent incidences of gun violence, school safety and security has become an increasingly pressing concern in the United States and Canada. Schools, summer camps, daycare centers, and other agencies charged with the safety of children have a duty to protect them, and their ability to do so depends on solid policies, training, and appropriate response to security threats. Laws, regulations, and internal policies designed to shield children from harm may be developed proactively in response to a risk assessment or reactively in response to an event that caused injury to a child. Both are valid options in today’s climate of terroristic threats to school safety and security. Inaction is not. Schools and other child-centered programs must consider and develop appropriate responses to this new dynamic.

Schools generally respond to terroristic threats quickly and decisively, but examples suggest that, at times, responses might not be sufficient based on the level of risk to school safety and security. In December 2015 — two weeks after 14 people were murdered nearby in a San Bernardino, Calif. center for people with developmental disabilities — the Los Angeles Unified School District responded to an e-mail threat to students by closing more than 1,000 schools for a day. At about the same time, New York City officials acknowledged having received a similar threat, but considered it so “outlandish” that they dismissed it as a hoax. As it turned out, nothing did occur in L.A. and the students were safe. New York City Police Commissioner William Bratton accused his Los Angeles counterparts of overreacting, but the question remains: What if the threat had been credible and the school had failed to act?

The incidences in New York and Los Angeles are not isolated to large American cities. In November 2015, authorities in Canada — a country that prides itself on its low crime rate — reacted to the latest in a rash of e-mailed threats by closing 71 schools in Quebec and Ottawa. Nothing was found in any of those searches, either. “Notwithstanding the fact that these threats seem to be unfounded, they are taken very seriously by police and will be the subject of an investigation,” police in Quebec said.

Taking action in response to these threats, which met the provincial definition of a terrorist act, is the right thing to do. Ignoring or making light of any terroristic threat places students and teachers at risk.

 

Appropriate Response to School Safety and Security Threats

The standard of professional care and legal standards for determining what constitutes a credible threat are contradictory and confusing. Until the U.S. Supreme Court defines a common standard, various contradictory lower court opinions will persist. With no clear standard of what constitutes a credible threat to school safety and security or how a school or other agency should respond to one, personnel must take all terroristic threats or suspected threats seriously.

States and provinces have definitions of what constitutes a terroristic threat, and these definitions may fit in the context of schools as well. For example, Pennsylvania law defines a terroristic threat as a threat to commit violence with intent to terrorize another person, to cause evacuation of a building, or to cause serious public inconvenience with reckless disregard for the risk of doing so. In the school context, a warning of a mass shooting that prompts a school evacuation and disrupts education constitutes a terroristic threat under Pennsylvania law, and in response, action can be taken against the perpetrator.

In addition to state and provincial laws, other resources provide guidance for schools:

  • In its 1999 report, “The School Shooter: A Threat Assessment Perspective,” the FBI’s Critical Incident Response Group recommended that schools adopt threat-response policies based on three tiers: low-level threats carrying a minimal risk; medium-level threats, which could possibly be carried out but are not entirely realistic; and high-level threats that pose a serious and imminent danger. The report provides guidance for categorizing threats into each tier.
  • A 2004 report by the U.S. Department of Education and the U.S. Secret Service, “The Final Report and Findings of the Safe Schools Initiative: Implications for the Prevention of Attacks in the United States,” suggests that there are productive actions that educators and others can pursue in response to the problem of targeted school violence and terrorism.
  • Another 2004 publication from the Department of Education and Secret Service, “Threat Assessment in Schools: A Guide to Managing Threatening Situations and to Creating Safe School Climates,” builds on the previous report. It sets forth a process, known as threat assessment, for managing students who may pose a threat.

The latter two reports stress that school shootings are rarely impulsive acts. The shooters told other students (though not the victims) about their plans in advance of their actions, but the other students did not tell adults. Telling others constituted a terroristic threat, but in many cases the students who knew of the threat failed to act. They did not report the threat to a school official who might have been able to intervene to prevent the compromise to school safety and security.

Perhaps these students did not know how to respond. Schools should provide training to staff, students, and parents and incorporate a definition of terroristic threat in the student code of conduct, the school security policy, and information that goes home to parents. Information from the school should clearly specify how a student, staff member, or someone from the community is to report threat information to a school official and how the official should respond. A good example is the policy of the School District of Philadelphia regarding terroristic threats. After defining a terroristic threat, Philadelphia’s policy states that:

  • Staff members and students shall be made aware of their responsibility for informing the building principal about any knowledge relevant to a possible or actual terroristic threat.
  • The building principal shall immediately call 911 and follow the district’s crisis plan after receiving a report of such a threat.
  • The principal shall react promptly to this information and knowledge, in compliance with state laws, regulations, and procedures established with local law enforcement.

 

School Safety and Security Threats Require Swift and Decisive Action

Sometimes there is no obvious threat, yet a terroristic act takes place. Depending on circumstances, the school might not be held responsible. For example, in a case in which I was engaged as the expert witness, a woman came through the front door of an elementary school with what she said was her nephew’s lunch in a brown bag. She asked the school secretary if she could take it to her nephew’s classroom. The secretary, who knew the woman, agreed. The woman went to the first-grade classroom, walked through the door, and greeted the teacher, “Good morning, Ms. Miller.” She then reached into the “lunch” bag, pulled out a revolver, and shot and killed the teacher in front of 24 children. Is it necessary to search every person who comes into a school, is known by staff, is the parent or aunt of a student, and who says she is there to bring a forgotten lunch to a child?

The answer is, “No.” In this case, it was my opinion that the school acted appropriately and reasonably under the circumstances. In this suburban community, there was no undue concern about a threat to the safety of the children in the school from outside sources. There was no announcement of a terroristic threat — the person entering the school did not say she was there to shoot a teacher. The secretary did not see a weapon, and she had no reason to believe the woman meant any harm. The woman was “screened” when she came into the school — she was known, she showed her license, signed in, and stated what was determined to be a legitimate reason for being there. Should the secretary have called the student to the office to pick up his “lunch?” Should the secretary have taken the “lunch” to the student? She would have noticed that the bag was too heavy for a peanut butter-and-jelly sandwich. But these thoughts come to mind after a tragedy like this. Can we do better in some situations? Yes, but this school, in my opinion, did nothing wrong. This terrible tragedy was sparked by a neighborhood spat. It is unfortunate that it ended with devastating consequences for 24 children.

There may be other, more obvious, situations that call to task the decision making of school personnel. One such example occurred in Texas, when a man approached a greeter in the school hallway and told her: “I am a gunman. My target is inside of the building. I’m going in the building. You stop me.” The principal did not call 911 because the man was immediately recognized as a parent and school volunteer. It appeared as if he had no weapon, and the school simply asked the man to leave. He did.

After this incident — which occurred less than a year after the shootings at Sandy Hook Elementary School — some parents felt that the school should have treated it more seriously. Though the man told police he was testing the school’s security response, he was later charged with making terroristic threats. The charge was appropriate, but was the school’s response reasonable? Even though the greeter at the front door recognized the man as a parent and trusted him, could he have carried out his threat? Yes, he could have. The duty of the school is to protect the students. Whenever there is any terroristic threat or reasonable suspicion of a threat, the school must act swiftly and decisively.

Closing school and depriving students of a day or so of their education, if it assures their safety, is worth the effort and is appropriate. Not having a clear policy, failing to train staff, and not addressing terroristic threats that might place students and staff in harm’s way can result in injury or death — and costly civil litigation from the harmed party. The best practice is always to place the protection of children and the wider school community at the top of the list. After all, learning can’t take place if children and staff don’t feel safe.
Schools should review state and provincial laws, agreements with law enforcement agencies, and other resources. Review existing school or program policies and procedures for responding to a terroristic threat. Inform and train students and staff about both the policy and what constitutes a terroristic threat, and if one occurs, carry out procedures decisively. Treating seriously any potentially deadly threat to a school or its inhabitants and involving the authorities without debating its credibility is the best course of action in regards to school safety and security.

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

injury from restraints at school

Liability for Student Injuries at School

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

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

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

Student Injury at School and Failure to Meet Standards of Care

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

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

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

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

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

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

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

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

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

Student Rights to Bodily Security

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

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

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

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

School 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.

School Safety Expert on Student Injury Liability and Negligence

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

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

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

Professional Standard of Care

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

School Related Injuries

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

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

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

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

Extent of School Liability

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

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

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

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

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

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

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

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

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

Elements of Tort Law and School Liability

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

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

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

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

Duty to Protect

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

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

Failure to Exercise a Reasonable Standard of Care

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

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

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

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

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

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

Proximate Cause

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

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

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

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

Contributory Negligence in School Liability Cases

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

Actual Injury

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

School Liability

Understanding School & Agency Liability Involving Child Injuries

SUMMARY

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

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



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

[2] Ibid.

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

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.

Another Look at Guns in Schools: Liability

school liability

Guns, Student Safety & School Liability

South Dakota became the first state to enact a law explicitly authorizing school employees to carry guns on the job. Several other states already have provisions in their laws — or no legal restrictions — that make it possible for teachers to possess guns in the classroom. In fact, a handful of school districts do have teachers who carry firearms. Eighteen states allow adults to carry a loaded gun on school grounds, generally provided that they have written permission from an administrator or the school board. Only some of those laws specify reasons for giving teachers or adults the authorization to carry a firearm.

The American Federation of Teachers and the National Education Association have campaigned against such measures, but not all teachers and administrators share their position. In Tennessee, the membership of Professional Educators of Tennessee, a nonunion professional organization, is split about 50-50 on proposals like this. J.C. Bowman, a spokesman for the organization, told reporters in Chattanooga, “Some don’t want the responsibility, and they worry about liability.”

School liability for injury from guns

Liability, the legal responsibility for damages, is a real concern whenever something can possibly cause harm to a person. Poorly designed playgrounds, heavy televisions not properly strapped to a TV cart, poorly lighted parking lots — and guns — all present a risk of harm to kids and staff. Take, for example, the potential for harm when a security officer left a firearm unattended in a Michigan charter school bathroom. The school claimed that no children were in danger. Was there a risk of harm?

From a liability perspective, consider this potential scenario: What if two students went into the bathroom when the gun was left there? One student picks up the gun and, out of curiosity, pulls the trigger, shooting and seriously wounding — or worse, killing — his classmate. How would that situation play out in terms of negligence? Would the school be liable? Negligence is the failure to exercise the standard of care for the wellbeing of others that a reasonable and prudent person would exercise under similar circumstances. If this school employee breached his legal duty to protect students from an unreasonable risk of injury by leaving his gun in the bathroom (negligence) and a student was harmed (proximate cause), would the school be liable for the security guard’s negligence?

In the wake of the shootings at Sandy Hook Elementary School, one Pennsylvania state representative proposed that with proper training and certification, teachers should be allowed to carry guns in classrooms. The security officer’s actions in Michigan, however, raise questions of whether he was properly trained and whether his superior or principal appropriately supervised him. Appropriate and adequate training and supervision are elements, once demonstrated, that can help to protect a school from liability stemming from an employee’s negligence. If the board of education, for instance, approved a rigorous training program that attuned the security officer to the risks firearms in school and how to protect students and others from harm, the court may be convinced that the school provided appropriate training. The school, then, might not be found liable if the officer fails to exercise proper control of his weapon, in violation of school policy.

The National Rifle Association has called for arming school security officers. Could more guns in schools prevent another Sandy Hook, or does it create opportunities for negligent behavior and school liability? Does it really help our kids feel safe at school?

Some students and teachers say that placing cops in schools to keep kids safe often has the opposite effect — it intimidates students. In effect, it makes the police the de facto disciplinarians in schools. Some students have voiced the feeling that they’re walking into a prison every time they enter their schools patrolled by armed police officers. One student dropped out of school because her backpack and pockets were searched every time she came to school.

The National Association of School Resource Officers, a training organization for police officers who work in schools, received more than double the normal requests for training after the Newtown tragedy. Properly trained school resource officers (SROs), working with school employees and students, can help to create a safe school environment. Susquehanna Township, Pa., Police Chief Rob Martin, whose department has assigned an SRO to the Susquehanna Township School District for the past 7 years, told the Harrisburg Patriot-News that staffing a school with an SRO “is about helping them, counseling them, guiding them through a very tough period in their lives.” It’s not, he added, about arresting kids or finding kids in trouble. When part of an effective school safety team, SROs can benefit schools and develop positive bonds with students. The officers can train faculty and staff to deal with emergencies, help to develop safety plans, conduct safety drills, and teach students about personal safety. SROs can also humanize police who are in the school on a regular basis and are there to kelp kids.

But it can also go very wrong.

David came to his middle school with a knife some described as a machete. He walked into the SRO’s office, a 9-by-12-foot space with a desk, chairs, and a filing cabinet. He approached the SRO and, according to the officer, threatened him with the knife. Several teachers watched events unfold through a window but were helpless to intervene. The student was shot 12 times by the officer, who never even attempted to leave the room for his own safety. The student had a behavioral disorder and was in a special class where he received behavior modification and counseling. His teachers knew how to use strategies to calm David, “disarm” him emotionally, and even to take the knife from him.

The school never communicated this information to the SRO, who acted in a negligent way by all standards. Is the school now liable for this student’s death? In this case, the key question becomes whether the school adequately trained the SRO regarding the needs of the student and how to deal with his behavior. If it did not, the school may be vulnerable to liable for the actions of its SRO.

This incident raises an important consideration in any discussion about arms in schools: Whether a school provides appropriate training in interactive skills between students and staff.

In a small private school for children with behavioral disorders, a high school student acted out violently after his teacher directed him to do something that he didn’t want to do. The student rampaged through the school and into the parking lot, brandishing a pair of scissors. The school called 911, and three local police officers confronted the student as he ran from the school. “Put down the weapon,” the police commanded. “Put down the weapon. Put down the weapon.” The student ran toward the officers. According to police procedure, one of the officers shot and killed the student.

The town and its police department were exonerated because, according to the judge, the procedure met the standard in the field of police work and the officer acted in accordance with the standard. The school, however, severely missed the mark. The school through its teacher, counselors and administration, created a situation that caused this student to snap — leading to a situation requiring the police to “control” him and ending in tragedy. In this situation, even though school personnel carried no weapons and did not shoot the boy, it was sued for negligent supervision of the student alleging its failure to act in a way to protect the student from harm. The school filed for summary judgment which was granted by the court.

Key issues: training, risks, and obligation

Is security a state of illusion? Are there risks of liability if things go wrong? These are serious questions that schools need to explore. Of course, there are liability risks. If something goes wrong, what should an attorney review? One of the most important elements is training. Was the person carrying the weapon appropriated trained? What did that training consist of? Was the person informed about specific students and how the staff deals with them so that the student doesn’t escalate the danger to a point of no return? Is there a risk of calling the police to handle a student when the police don’t know the student but the school possesses the skills to “talk the student down?”

Preventing school-related injuries is an ethical and legal obligation for schools. Whether arming school personnel increases or decreases this risk is a matter of debate. It also raises important questions about the type of culture we want to cultivate in schools. Because a wide range of injuries are litigated and often require schools to pay costly awards to injured parties, the issue of guns in schools takes on even greater importance.