May 28, 2017

Assessment of Liability: Child Abuse and Injury in Residential Care

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

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

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

Reasonable and prudent parent standard

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

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

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

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

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

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

Standard of care for residential and boarding schools

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

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

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

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

Expert role in assessing standards of care

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

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

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

Real case examples

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

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

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

Liability in Child Injury Cases at Non-School Programs

Personal Child InjuryIn settings where children are supervised by adults, we often think about traditional settings, such as schools and summer camps. But these are not the only places where children participate in activities that require adult supervision and which can result in child injury cases. Some nontraditional settings include resort and vacation day care programs, community recreation centers, church-sponsored events, and Boy and Girl Scout activities, among others.

In these and other nontraditional settings, when children are involved and adult supervision is required, the organization has a duty to protect the children. Breach of that duty may extend beyond inadequate supervision or lack of supervision; staff and volunteers must be appropriately trained, and rules and regulations must be considered. If a plaintiff can show that poor supervision, inadequate training, or a lack of rules and regulations is a proximate cause of a child’s injury, the organization may be liable for child injury cases.

Importance of Training and Supervision Standards in Child Injury Cases

Schools and summer camps hire certified and trained employees, and they generally provide additional staff training in supervisory methods related to the age of the children and the activities in which they participate. Schools and camps also have formal child supervision policies and procedures, and they evaluate staff on their supervisory performance. Beyond schools and camps, however, many organizations with supervisory responsibilities for children are often much less rigorous in their methods.

Most frequently, these organizations do not have written policies and don’t provide training on how to keep kids safe from harm. Few provide adequate staff training and child supervision. These are often the elements that plaintiff will address in a lawsuit claiming negligence. Regardless of the organization, once it sponsors an activity involving children, it is responsible for their safety, which is incrementally enhanced with the level of appropriate training and supervision. In child injury cases in programmatic situations, approximately 80 percent of plaintiffs’ allegations involve negligent supervision.

Volunteers become an integral part of the work of most not-for-profit organizations and often fill a gap when paid employees are not available. At many organizations that provide services for children, volunteers conduct countless tasks. Churches often see themselves as “families” and sometimes may overlook the importance of training or supervisory functions of Sunday school teachers or of parents who organize and conduct activities such as Friday evening scavenger hunt. But all volunteers need adequate training.

For these organizations, external resources are available. GuideOne Insurance, for instance, offers SafeChurch training programs that provide church workers and volunteers important knowledge about potentially significant safety risks. These programs cover facility safety, transportation safeguards, and other categories. The company also provides informational resources about child abuse prevention, daycare and nursery safety, and playground safety.

To protect themselves from potential liability in child injury cases, many churches and other volunteer organizations have policies addressing the hiring of paid staff and the engagement of volunteers who work with and supervise children. For example, the Archdiocese of Baltimore requires each volunteer who has substantial contact with children at a parish or school to complete an application. Three references are provided, checked, and documented. A criminal history screening is conducted, and the volunteer must participate in training about child abuse and the protection of children. The archdiocese uses a compliance management system to track completion of these requirements.

Cruise ships offer an example of a nontraditional supervisory setting involving paid employees. Many cruise lines offer programs that provide young passengers an opportunity to explore art, play games, and to get acquainted with other children. Holland America Line, for instance, offers children’s programs during the day so that their parents can be on their own for a period of time. Most programming is during sea days, with late-night group babysitting available on some ships for a fee. On Carnival Cruise Lines, Camp Carnival is a fleetwide program for children who are 2 to 11 years old. Carnival also offers separate programs for children aged 12–14 and those 15–17.

These programs and others such as dance studios, karate centers, gym daycares, township recreational programs etc. are essentially the same in terms of duty as those provided in school and by other organizations, and the people responsible for children in their care have a duty to supervise them appropriately in order to protect them from harm. Cruise lines that offer youth programs generally accept all children who are potty-trained and meet the minimum age requirements, without knowing anything more about the child or his or her history of behavior. What parents don’t typically realize is that the cruise line can be held liable for child injury when supervision of these children is negligent.

Parents have a “contract” with caregivers and teachers to supervise and protect their children. In a child injury case for which I was engaged as the child supervision expert witness, a parent left his 7-year-old son in an afternoon program on a cruise ship, where about two dozen other children ranging in age from 7 to 10 participated in arts and crafts projects, a sing-a-long, snack time, and a nap. During nap time, when children were lying on mats on the floor and covered with light blankets, a 10-year-old moved over to the 7-year-old and sexually assaulted him. Testimony from other children in the room was that the person who was to have been supervising stepped out on deck to talk with another ship employee, leaving the children unsupervised for several minutes.

Determining duty was not an issue. Because the parent entered into a “contract” with the supervisor, and essentially the cruise line, that his child would be safe, the cruise line had a duty to protect. That duty required that a responsible adult be present to oversee the children during nap time and to intervene if any behavior on the part of a child might cause injury to another child. The program did have a policy that during nap time, floor mats were to be kept at least 18 inches from each other. This policy was practical, but it did not prevent a child from sexually abusing another. The only thing that would have prevented this was diligent supervision by a competent adult employee. Because the supervisor was not in the room for a significant amount of time, the opportunity arose for the 10-year-old to sexually assault the younger child.

Negligent supervision of children or lack of training for adults — be they paid staff or volunteers — may not necessarily create liability for an organization if a child is injured physically, is sexually assaulted, or dies while in the care of an organization. In child injury cases plaintiff must show that inadequate supervision or training is the proximate cause of the incident. The competence and training of the person supervising, the location of the supervisor at the time of injury, and the number of supervisors on duty are key elements in determining liability. The age and abilities of the child and the foreseeable dangers in the location of an activity are additional factors when determining liability.

Importance of Adequate Policies and Procedures in Child Injury Cases

As with schools, daycare centers, and summer camps, nontraditional organizations must consider policies and regulations when children are involved and supervised by adults. There are rules that may be developed into written policies made by the organization’s governing body; rules that are operational in nature, made by administrative and supervisory personnel; those that are considered ministerial acts for which there usually is liability; and rules of a specific activity that the children are engaged in, such as baseball, karate, or even crossing the street as a group. At this level, the supervisor or the person in charge of the conduct of the activity is required to see that the rules are followed.

The overriding assumption is that rules are developed to provide for the safety and protection of children, and that if they are not enforced, there is a greater possibility that a child will become injured during the activity. However, while there may be a duty to establish rules and regulations — either by statute or by virtue of a potentially dangerous situation — the mere fact that there were no rules or regulations is not negligence per se in child injury cases. As with lack of supervision, lack of rules and regulations must be the proximate cause of the injury.

One of the key responsibilities of supervision in any child-centered organization is to identify dangerous conditions or activities and then either warn of the condition or stop the activity. The supervisor must take appropriate action — and possibly create the rules on the spot — for the protection of the children. Duty to warn contemplates opportunity to know of danger (actual or constructive notice) and to have time to communicate it. Two children colliding while running on the playground may not rise to the level of negligent supervision in a summer camp because it’s not unusual for 6- and 7-year olds to run during recess on the playground. This would not be considered a dangerous condition or activity for which the counselor would need to warn or stop. On the other hand, when children are throwing rocks at each other, the supervisor has a duty to end the behavior and to warn children of the danger that someone can become seriously hurt. Then, the supervisor needs to keep diligent watch over the children and the area to ensure that the activity doesn’t reoccur. A supervisor should also prevent children from using defective equipment that would cause an activity to become dangerous. This might include a hazardous condition on the playground, unsteady gymnastic equipment, or a karate mat that has lost its padding.

Conclusion

The standard of care owed to children who participate in organization-sponsored activities must be consistent with legal standards and the standards of a reasonable person under the circumstances. In order to fulfill their mandate to see to the safety of children, nontraditional agencies that provide services for children need to know the requirements for reasonable and prudent operations. Anticipating dangers and correcting for them by warning participants and eliminating the dangers will help to protect children from harm. Training supervisors to keep an eye on children at all times and to anticipate that children don’t always act the way one might expect — they might run into the street or throw a rock at another child, for instance — will help protect children and the organization.

The standards by which nontraditional organizations operate are not always clear-cut. The methodical and systematized practice of safety education within the agency until all employees and volunteers are thoroughly educated and habitually perform their functions with safety as the uppermost concern will go a long way toward protecting children from harm and protecting the organization from costly litigation for child injury cases.

Private School Lawsuits: Contractual v. Constitutional Standard of Care

Sexual abuse in private schools

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

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

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

Contractual vs. Constitutional Standing

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

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

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

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

Illustration of Successful Private School Lawsuit

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

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

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

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

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

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

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

Assessing Private School Claims

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

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

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

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

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

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

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

Summary

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

Student Injury and Reasonable Professional Standard

Student Injury and School Liability

Student Injury and School Liability

Unquestionably, schools have a responsibility to protect children from harm. The same goes for agencies such as day care centers, summer camps, and after-school programs. Schools and agencies, however, are not the ultimate protectors; that role falls to employees, who must act on behalf of the school in a way that is reasonably calculated to maintain children’s health, safety, and well-being. The key word here is reasonable — and in the totality of a situation in which a child was injured or died, an analysis and assessment of what was reasonable can be challenging but it is the key to assesing school liability.

The distinction between a school or agency’s duty to protect and who is the ultimate protector from harm in a given situation is important, because it provides an avenue for determining liability. This is the starting point for analyzing a case involving student injury or death and assessing what kind of behavior would be expected to keep children safe. Behavior that is deemed reasonable under the circumstances leads us to the question of whether those in charge acted appropriately and within a professional standard of care that is calculated to protect children from harm.

Determining either the merit of filing a lawsuit or the strength of a defense boils down to two key questions. Attorneys need to know “What would a reasonable administrator, or other employee, do in the same or similar circumstance?” and “If this person acted differently, would the injury or death have occurred?”

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

Student Safety: What should be done?

Ensuring children’s safety requires that those in charge be both proactive and reactive in a meaningful way. At a general level, a reasonable school or program administrator would conduct a safety survey of the facility, the equipment, and the community; assess the supervisory requirements of the children based on their age, number of children, and any unique characteristics; and develop policies and specific procedures for staff implementation. Specific circumstances may compel a reasonable administrator to take additional measures or instruct staff to be vigilant and prepared to disarm a situation, even if no statute or regulation requiring specific action exists.

As an attorney, place yourself in the classroom where a child slipped and fell. Or in the daycare center where the teacher asked a child to carry hot soup across the room. Or at an agency-sponsored trip where a child ran into the street. Then ask yourself: What should the administration and staff have done to protect children in these circumstances? Were reasonable and appropriate steps taken, and if a child was hurt, would the injury have occurred even with these precautions? Let’s consider these questions in the context of two real cases.

Wrongful Death Lawsuits against Schools and Agencies

Applying the Reasonable Standard to School Accidents

The first case involves a 300-pound cafeteria table that fell on a second-grade student. This was an 18-foot table that folded in the middle and stood upright, on wheels, when folded. When the folded table was put away, it was rolled to a wall, where it would be securely fastened by a manufacturer-supplied device. Recognizing the need to protect students from a falling table, the school developed a procedure by which the custodian, immediately after lunch, would clean the tables, fold them, move them to the wall, and secure them to the wall. This was in his job description. The latches along the wall were functional, but the custodian failed to latch one table to the wall. When a student walked through the cafeteria, he leaned against the table — causing it to topple onto his head, killing him.

Any reasonable school or agency administrator would understand that if a 300-pound table was not securely fastened to the wall, it might tip and fall on a student. The school recognized this danger, developed a careful procedure, and placed it in the custodian’s job description. The manufacturer warned that the tables must be latched to the wall with the supplied mechanism to prevent accidental tipping and injury or death. The manufacturer provided this mechanism and the school properly installed it and required the custodian to use it to secure the tables. The school, through its administration, was also responsible for ensuring that its standard was followed.

In this case, the test for actual causation is whether the plaintiff could establish that this student’s death would not have occurred without the negligent conduct of the school through its employee. Viewing this through the eyes of a reasonable school administrator provides the answer. A reasonable administrator would have developed a review-and-supervision system whereby she would regularly observe to ensure that the school’s own standard was being met — that is, that the custodian latched tables to the wall as required. If the administrator saw that the custodian failed to fasten a table to the wall, it would be her responsibility to correct the custodian’s behavior by bringing this deficiency to his attention. The administrator failed to ensure that the proper procedure was being followed and that contributed to the custodian’s failure.  In this case, it was determined that if the table was securely fastened to the wall — as per the professional standard of care — the student would not have been killed.

The second case involved a television that sat atop a movable cart. Teachers used the cart regularly to move the TV from one room to another and then into a hallway storage closet at the end of the day. In the morning, the teacher wheeled the cart with the television to her classroom and set it up for a small group of children to watch. Later, she was busy with another group when she instructed two third graders to take the loaded cart down the hall and put it in the closet. Along the way, the children began to play on the cart — one standing on the bottom shelf, holding onto the sides, while the other pushed. When the child pushing the cart let go of it, the cart tipped in the direction of the student hanging off the front. The 55-pound TV slipped off the cart and fell on the child’s head, causing permanent brain injury.

As with the case involving the table, the test for actual causation in this instance is whether the plaintiff could establish that the child’s injury would not have occurred if not for the administrator’s and the teacher’s negligent conduct. A reasonable administrator would have notified teachers that children would not be allowed to push carts with TVs on top of them. In fact, in this case, the cart had a sticker on it stating “only to be moved by an adult.” Moreover, this particular cart earned the distinction as a dangerous piece of equipment by the U.S. Consumer Product Safety Commission (CPSC) because of numerous injuries resulting from its design. Although the manufacturer was notified of the CPSC warning and provided this information to those who purchased the cart, the school either did not receive the warning or did not consider it when assessing the overall safety of the facility and equipment. The cart was not taken out of service and teachers were not warned to prohibit students from pushing it.

Elements of Tort Law and School Liability

Summary

Schools and agencies have a responsibility to care for and protect children from harm. They must act in a way that is reasonably calculated to maintain the health, safety, and well-being of children. An analysis and assessment of what was reasonable in the totality of the circumstances surrounding the death or injury of a child can be challenging. Determining what was reasonable under the circumstances addresses the question of whether appropriate actions within the professional standard of care were taken to protect the child from harm.

Applying the reasonable professional standard within the context of the situation provides a focus. This is best done by someone with a thorough understanding of how schools and agencies work and how a reasonable and prudent administrator would act in a specific circumstance. Attorneys who don’t have a clear picture of how systems work — or should work — in these settings often misjudge the merit of filing a lawsuit or the strength of a defense against one in cases involving a student injury or death. The two examples in this article illustrate the complex analysis required for a full understanding of a situation and its implications for determining liability.

Remember the two key questions: “What would a reasonable administrator or other employee do in the same or similar circumstance?” and “If this person acted differently, as a reasonable administrator, would the injury or death have occurred?” Attorneys who have the answers to these questions may be able to improve their assessment of a case.

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.