May 28, 2017

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.

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.

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.

3 Questions in the Wake of the Sandy Hook School Shooting

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

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

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

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

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

Safety in schools

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

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

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

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

The very lives of our children are at stake.

Mental health services

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

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

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

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

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

The very lives of our children are at stake.

Gun control

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

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

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

The very lives of our children are at stake.

Healing

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

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