May 28, 2017

Student Injury and Standard of Professional Care Analysis in Schools

student injuryRisk of personal injury to children is reduced when activities, facilities, equipment, personnel, and supervision are brought into compliance with “standards.” There are several sources of standards. Some standards are mandated by law through statutes. Additional standards are set forth by oversight authorities, such as the American Academy of Pediatrics, the American Camping Association, the National Federation of High School Athletic Associations, or the U.S. Consumer Product Safety Commission, to name a few. Other standards involve the customary professional practice of those conducting such activities. Ignorance of such standards is no excuse for failing to comply and schools and agencies with children have a duty to be proactive about implementing standards in order to prevent student injury.

As an education and child supervision expert, I begin my review and analysis of the issues of a case by identifying standards in the field — those mandated by law, or statutory standards, those set forth by oversight authorities as well as the customary professional practice of the school, summer camp or daycare — and then determine whether they met those standards. If my review and analysis demonstrates that standards were not met, then the next step is to consider whether a breach of one or more standards was a proximate cause of alleged student injury. Determining whether a risk of injury exists is, in part, assessed by ascertaining whether compliance with standards is met. For example, although there may not be standards mandated by law for camps that offer swimming as part of their programs, the American Camping Association, an oversight authority, specifies minimum requirements for a lifeguard. Meeting this standard requires a minimum level of training for the lifeguard and also certification. If the camp employs a lifeguard who does not meet these requirements, there is an inherent risk of student injury since the lifeguard was not trained to receive the certification.

Federal statutes, such as the Individuals with Disabilities Education Act (IDEA), require that schools provide a certain level of programs and services for children with disabilities so that children can benefit from their education. Regulations implemented for IDEA specify that schools must develop an Individualized Education Program (IEP) for a child with a disability and that the IEP be reasonably calculated for the child to benefit from his or her education. This, then, becomes a standard of care for comparing how the school met or failed to meet the needs of a particular child. If a child displays significant behavior issues, then the statute requires the school to conduct a behavior assessment and develop a behavior plan to be followed by school employees. Failure to develop an appropriate and reasonable behavior plan as part of an IEP for a child with behavioral problems and failure to train teachers in its implementation may be considered a breach of the professional standard of care. If a plaintiff became seriously injured in a fight with the student who exhibited behavioral issues, and if the school had notice of the student’s aggressive behavior but failed to address it through the IEP, the school may be held liable for breach of the professional standard of care and student injury.

Schools must develop policies to guide their operations, to provide educational services for students, to develop curriculum and to supervise teachers, all for the end result of providing education in a safe environment. Schools have policies that reflect their staff’s responsibility to report child abuse, how to implement the student code of conduct and how to curb hazing in athletics. For example, every state requires local school boards to develop and implement a policy to address school bullying. This becomes another source of the standard of professional care. If a student was identified as one who had bullied others and later seriously injures a student in a fight, one of the questions to be asked is: Did the school meet the professional standard of care required by state statute and by its own policy? Is there a nexus between any breach of care and the student injury? If the school did not have a policy to address bullying or if the policy in place failed to meet key components of state statute such as staff training requirements, those breaches may be a proximate cause of student injury.

 

Student Injury Lawsuits and Professional Standards of Care

Professional standards set the backdrop for case review and analysis. At the top of the list are regulatory requirements in the form of statute, regulation, and licensing standards. In cases involving the death or serious student injury, these are first standards I identify. For example, if the state of Delaware requires that the ratio of certified, trained adults to three-year-olds in a childcare program is one adult for every five children, then that becomes one of the standards. I determine whether the daycare acted within the professional standard of care and whether its actions were appropriate and reasonable under the specific circumstances. If, as an example, a child climbed on top of a table in a classroom, stood up, and was pushed off by another student, I determine how many children were under the care and supervision of the teacher at that time. If the teacher was responsible for 15 students when the injury occurred but the law says there were only to be five students, then one of my opinions might be that the breach of this professional standard of care was a proximate cause of student injury.

Next in line are the policies of the school, summer camp, daycare or other agency responsible for the care of children. In most cases, these policies mirror federal and state statutes and regulations, but sometimes they go beyond them. When the school develops its policies, those policies become part of the professional standard of care as expressed by that school, and the school can be held to compliance with them. In addition, other standards may apply, information contained in parent and staff handbooks. The school must comply with the standards in these documents if it is to demonstrate that it met the professional standard of care.

In some situations, beyond school policy, there may be unpublished standards — “unwritten rules” — that have been developed over time by the school administration. This component becomes another layer of standards and often is difficult to address because it is considered custom and practice within a single school or agency. It becomes difficult to argue against or to defend because in some cases these customs may run counter to professional standards of care. For example, a principal has developed a policy that, when a student misbehaves in the cafeteria, she brings that student to her office to sit out the lunch time. During the time the student is in the principal’s office the principal talks with the student about his behavior. The principal has done this for three years and there has never been a question. This became an unwritten rule, an unpublished standard and practice beyond school policy. However, official policy requires the principal to complete a referral form for the school counselor and the counselor is expected to meet with the student. On one occasion, after several disciplinary issues occurring in the cafeteria, and meeting with the principal in her office, this student attacked a classmate at the end of the school day. A thorough review of the school policies will include the standard developed by the principal which, in this case, was contradictory to official school policy. Although counseling this student in the principal’s office might be shown to have been somewhat reasonable, counseling with the school counselor as per written school policy might have avoided the aggressive behavior and prevented student injury.

 

Professional Standard and School Liability

The appropriate and acceptable standard of care is demonstrated when a person, such as the supervisor of a child, acted reasonably and prudently in a specific circumstance. Failing to act reasonably and prudently may be a proximate cause of student injury. Compliance with standards alone does not entitle the school to summary judgment. Some standards are not adequate for specific situations. Customary usage and practice of the industry is relevant for determining whether a standard had been met. However, such usage cannot be determinative of the standard (Marietta v. Cliffs Ridge, 385 Mic. 364, 189 N.W. 2d 208 [1971]). On the other hand, if a school failed to comply with standards, it makes evidence of improper care easier to show. For example, the required student-to-teacher ratio in a preschool program of three-year-olds is one adult to five children. A school did meet that standard but a student was injured when he ran into the corner of a table when the teacher wasn’t paying attention. Just because the school complied with the teacher-to-student ratio does not entitle it to summary judgment. Often this is argued but other relevant circumstances must be assessed such as the attention of the teachers. If the school had one teacher supervising ten students when an injury occurred, this is clearly a breach of the standard and likely will be a contributing factor to the injury of the child.

Failure to follow some standards may not be related to student 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. The reasonable and prudent professional standard is, therefore, added to the pyramid of standards of care. This standard can be assessed only by a person who is qualified through education, training and professional experience to render such an opinion.
Professional standards are the foundation for determining liability when a child is injured or killed while under the care of a school, camp daycare center, or other agency entrusted with child safety. The many layers of standards, whether these standards were followed, whether actions were appropriate under the circumstances, and whether an action or lack of action was a proximate cause of injury or death weave a complex web in any determination of liability.

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.

School Liability for Student Field Trip Injuries or Death

field trip injuries

Adequate supervision is essential for prevention of field trip injuries.

For schools, summer camps, and day care centers, one of the key functions of student supervision is to identify dangerous conditions and then either stop the activity or warn of the danger. The supervisor must take appropriate action for the protection of the children. Duty to warn contemplates both having knowledge of danger (actual or constructive notice) and having time to communicate it.  Field trip injuries are very common and there is an equal duty to protect when children are off campus but still under school supervision, such as when children are on a school-sponsored trip. Excursions off school property present special challenges. Careful planning ahead of the trip, knowing about potential safety hazards, and creating a plan to avoid or mitigate them can help to protect a child from field trip injuries and a school from liability lawsuits.

The best defense against a claim of negligence is that has one or more of the four elements of negligence has not been proven: that a duty was not owed the injured, that reasonable care was exercised in performance of the act, that the act was not the proximate cause of the injury, or that there was no injury to the plaintiff. There will be times that the school will have done everything appropriate but a child still is injured. If the school can show that it exercised reasonable care, it will go a long way toward protecting the school from a lawsuit.

 

Adequate Planning is Essential  to Minimizing Risk of Field Trip Injuries

Being alert to potentially dangerous conditions at an offsite activity starts long before the activity itself. If a trip is planned for a picnic at a local park, for instance, the teacher or administrator should visit the park ahead of time to learn the layout and identify potential dangers on the property that may lead to field trip injuries. Are there any streams a child can fall into? Are there rough trails with loose rocks and tree trunks that can cause a child to trip? Is there a highway nearby that poses a risk to a child who wanders off from the group?

Informing the chaperones and children of the terrain, the hazards, and the safety rules ahead of time is most important. In providing written rules for the children, parents, and chaperones, a school articulates its policy and the behavior it expects from adult and child participants in order to protect students from field trip injuries. Through this type of planning and communication, the school creates a foundation for protecting it from liability should something go wrong.

It also is important to ensure that there are enough adults to provide adequate supervision at the event. In thinking about how many adults are needed, consider how many children will attend, their ages, and whether they have any disabilities or behavioral issues requiring special attention. A higher duty of care exists for a student with a disability or when a child’s Individual Education Program (IEP) requires specific attention to details to keep the student safe.  If a student requires a one-on-one aide at school for additional supervision, the same requirement extends for fieldtrips and other activities to minimize risk of field trip injuries.

 

Negligent Supervision of Students on School Field Trips

One of the cardinal rules of supervision on school field trips is to ensure that children do not leave sight of chaperones. The question of liability for injuries when children leave adult supervision without permission presents two factors. First, was there negligence in supervision on site that permitted the child to leave? If so, then that breach of duty would be the proximate cause of the injury. Second, was that type of injury foreseeable? If so, then failure to supervise a child in a way that could have prevented the injury would be negligence. For the school to be held open to liability, there must be proof that lack of supervision or that negligent supervision was a proximate cause of the accident.

Individuals who perform supervisory functions must conduct themselves as a reasonable person would under similar circumstances. Inappropriate behavior on the part of the supervisor may lead not only to a negligence suit in the case of student field trip injuries or death, but also to disciplinary action against the supervisor. As an example, in a Missouri case, two coaches took six high school boys and four female cheerleaders to a meet, where they stayed overnight. Evidence indicated that the coaches left the students unsupervised and the coaches attended a party and drank alcoholic beverages, and had allowed male and female students to sleep in the same rooms. The coaches were found to have engaged in inappropriate conduct when they abandoned the students and went partying and drinking. The court found that this behavior rendered them unfit to teach or supervise students.

Special attention must be given to the planning of off-campus trips with young children. In one such case, a kindergarten teacher planned a “safety day” class trip to a city-owned parking lot. The teacher planned this event in the same way she had for years, following board of education policies and seeking parent volunteers. Parents and children met at the school and rode with the teacher on a bus to the event. Just before arrival at the event, the teacher addressed the chaperones and said, “Please keep an eye on the children. We don’t want anyone to get lost.” What she did not do — and this turned out to be the proximate cause of a student’s death — was to assign specific students to each volunteer in order to prevent the risk of student field trip injuries.

At the event, the fire company brought a fire truck, the rescue squad brought an ambulance, and the police department set up “roads” with stop signs and walkways for children to practice safe street crossing. The police brought several electric golf carts to use as “cars” to make the scene as realistic as possible. After police officers finished conducting their demonstration of safe street crossing, three children climbed onto a golf cart, one hanging onto the front of the cart. An officer had left the cart idling, key still in the ignition. The cart drove straight ahead into the ambulance, crushing and instantly killing the child hanging on the front. Because several entities were involved in the event — the school, teacher, principal, volunteer chaperones, the police and fire departments, the EMT staff, and the municipal government that provided the parking lot, assignment of liability would likely be shared. The school, however, through the teacher who organized the event, was ultimately responsible for acting within the professional standard of care for supervision of children. Had chaperones been directed to supervise specific students at all times, it is likely that when the students climbed onto the golf cart, their chaperones would have stopped them.

Cases involving class trips can become quite complex when several agencies are involved. In a drowning case, a school had selected students to attend a leadership training program off campus. The school rented a nearby YMCA campsite that had several buildings suitable for overnight guests. There was also a third agency, the company providing the training program.

In this case, several students left the dormitory in the middle of the night, went to a nearby riverbank and took several boats into the river, even though signs strictly prohibited anyone from going into the water. When several students drowned, each of the three entities and many individuals became defendants. Sorting out supervisory responsibilities between the school, the training agency and the YMCA, assessing the capacity of the students to watch out for their own safety, and many additional elements became important when determining foreseeability, responsibility for supervision, proximate cause, and liability. In this case, proximate causation was determined through an assessment of whether the students’ misconduct would likely have been prevented had the duty to supervise been discharged.

 

Contributory Negligence for Student Field Trip Injuries

Questions of liability may arise from any number of unforeseen situations. Who bears the burden of liability when a student on a daytrip rents a bicycle, fails to wear a helmet, and sustains a head injury when he runs into a tree? What is the school’s liability if a child runs ahead of her group onto a highway, only to be seriously injured by a passing car? When a child’s own actions contribute in whole or part to wrongful death or serious injury, such circumstances can be a defense in certain situations.

As a court stated, a determination of contributory negligence involves several considerations:

  • Characteristics of the child (e.g., age, intelligence, experience, knowledge, or physical condition) that would influence her ability to detect dangerous conditions or appreciate the danger of a hazard observed
  • Physical facts, i.e., the extent to which the hazard is noticeable and the degree of alertness required to avoid such a hazard
  • The environment, be it the physical activities of the individual who was injured or killed or the movement, sound, or placement of other persons and objects in the setting.

For example, in the river drowning case described earlier, the question of contributory negligence was raised because the students who drowned were 17 and 18 years old, were determined to be intelligent because they had been selected for leadership training, were physically fit, and had the ability to detect the dangerous conditions of the river. A sign prohibiting swimming was clearly visible to a reasonable person, and there were no distractions at the scene that would have caused either of the students to lose concentration or momentarily forget that entering the river presented a danger of harm.

 

Summary

Supervision of children on the premises of a school, camp, or other entity is essential for protecting the health, safety and well-being of participants. Supervision of children at school-sponsored trips presents unique challenges and must be addressed in a different way. This is especially true when a group is planning to go to a place that is unfamiliar and may present challenges and dangers not typically considered.

Start with a clear, strong policy requiring administrative approval and a plan for the trip that includes safety and emergency responses. Consider how many children will attend, their ages, and how many adults are needed to supervise the children and protect them from harm. If the area is unfamiliar, the person in charge should visit in advance, making note of potential hazards and developing a plan to protect children from those hazards. Chaperones must know as much as possible about where the group is going, the potential hazards, who the children are and whether any have a particular disability, behavior problem or other characteristic requiring special attention, and which children are under their responsibility during the trip.

As an expert witness providing services for plaintiff and defendant attorneys on issues of negligent supervision and liability, I review the policies of schools and other entities and compare them against the facts of the case. This process provides insight as to whether the entity met its own standards by following its policies and whether contributory negligence was involved, leading us toward answers about questions of liability. When the facts are clear, an opinion may be rendered as to whether the entity acted appropriately and reasonably under the circumstances and within the professional standard of care.

Contributory Negligence Defense in School Liability Lawsuits

school liability

Contributory Negligence Defense in School Lawusits

Student injury or death often brings negative attention to a school. In fact, the first thing often reported publicly is an injured party’s claim that an incident stemmed from the negligence or misconduct of a staff member responsible for a child’s safety — a teacher, coach, or bus driver, for instance. But a student injury or death can result from any number of situations. These might range from school-related action or inaction, such as a breach of school security or failure to follow a student’s medical orders, to a student’s own actions and choices triggering a contributory negligence defense.

Consider these examples: A child runs into a street without a crossing guard present and is hit by a car; a teenager is shot by a rival gang member after his teacher sent him to a nearby restaurant to get her a sandwich; a boy sneaks into a restricted area of a building and falls through a ceiling; students drown in a river after taking boats out at night; and a girl on a skateboard flies off a ledge in a school parking lot. Any one of these cases could result in a liability lawsuit. But a determination of the facts may also show contributory negligence and produce strong defense against a liability claim.

The strength of a defense is determined by examining the four elements of negligence: (1) Duty to protect. Was a duty owed to the student? If it can be argued that no duty existed at the time of the injury, then a defense may be very strong. (2) Standard of care. Was reasonable care exercised in protecting the health, safety, and welfare of the student? If the school adequately instructed and warned students about a danger but a student purposefully disregarded these admonitions, a defense of contributory negligence might prevail. (3) Proximate cause. Was the injury or death directly related to something the school did or failed to do? If a school’s actions or inaction cannot be demonstrated as a proximate cause of the incident, there is a strong defense. (4) Actual injury. Even if the school breached a standard of care requiring specific safety measures, lack of an injury will contribute to the defense of the lawsuit.

This article will use a hypothetical case to demonstrate how the concept of contributory negligence may serve as a defense against liability and help plaintiff and defense attorneys assess the merit of a suit or the strength of a defense.

Determining if Contributory Negligence Applies as a Defense

According to the Restatement (Second) of Torts, section 463, contributory negligence is conduct that falls “below the standard to which [a person] should conform for his own protection.” School districts use a defense of contributory negligence when alleging that a student contributed to his or her own injury. Let’s illustrate how contributory negligence might apply when a student is seriously or fatally injured on school property.

A suburban junior high school warned students on a regular basis not to ride skateboards on school property. The principal made several such announcements over the public address system at the beginning of the school year. She also posted fliers around the school, gave one to each student in homeroom, and sent one home to parents. The announcements and fliers explained the dangers of skateboarding in the school parking lot because of the proximity of utility poles in the lot and a steep slope adjacent to it — all of which posed a threat of harm to a student who is unable to control a skateboard. The school posted signs in the parking lot reading “Danger — Skateboarding Prohibited.”

In the early morning hours before school, a group of seventh graders brought their skateboards to the parking lot and rode around. Five minutes later, one of them veered over the edge of the steep slope, crashing and seriously injuring her head. Another skateboarder called 911. EMTs treated the student onsite and transported her to a hospital. After three weeks in a coma, she died.

Our hypothetical case has the markings of a wrongful death lawsuit and a vigorous defense. In the context of the elements of negligence, let’s examine what plaintiff and defendant attorneys should consider.

First, was there a duty to protect the students? The school has a duty to reasonably protect people on its property, including the parking lot. These students were on school grounds at a time when students normally begin to arrive. The school might argue that the students should not have been in the parking lot at a certain time and, therefore, it had no duty to protect them. In this scenario, however, the weight will fall on the side of a duty to protect the students.

The next element to review is whether the school exercised reasonable care to protect its students. In our example, the school made clear to students that they were prohibited from skateboarding in the parking lot. The school also posted warning signs there. Plaintiff and defendant attorneys should examine whether school’s recognition of the danger was sufficient to protect students from harm. What did the school communicate to students? Were warnings adequate? In this situation, it’s likely that the school will argue successfully that it recognized the potential for danger and exercised reasonable care to protect students from harm.

The next question to answer is whether the student contributed in any way to her injury and death. Is it reasonable to consider that this girl would have understood the warnings but ignored them? In Russell v. Board of Regents of the University of Nebraska (423 N.W.2d 126 [1988]), the Supreme Court of Nebraska ruled that “One who is capable of understanding and discretion and who fails to exercise ordinary care and prudence to avoid dangers is negligent or contributory negligent.”

In determining whether contributory negligence applies, an attorney should consider three factors:

(1) Physical facts — the extent to which a hazard is noticeable and the degree of alertness called for by surrounding circumstances to avoid such a hazard. (2) The action taking place — the movement, sound, and physical activities of both the individual who was hurt as well as those of other people and objects in the vicinity. In other words, what distractions may or may not have influenced the chain of events? (3) The characteristics of the student who was hurt — age, intelligence, experience, knowledge, physical condition, or other factors that would influence a student’s ability to detect dangerous conditions or appreciate the hazards involved.

The third factor leads us to an important question: Is it possible that, because of diminished capacity, the student in our example would not be able to understand the dangers of riding a skateboard in the parking lot? Even with clear warnings about the potential for injuries when directions are not followed, some students may not understand how to keep themselves safe from harm. Assessing whether a school’s notice of danger was reasonable in this context can weigh heavily for or against a defense.

Some courts would hold that a very young child is incapable of contributory negligence because the child does not realize or understand the degree of care that must be exercised to avoid injury. Courts have differed on an age cutoff, but a common guideline is that children under the age of 7 are not capable of contributory negligence, Contributory negligence is also generally difficult to prove among students between the ages of 7 and 13, unless it can be shown that a student is unusually intelligent and mature.

School Liability and Duty of Care

Let’s conclude our example with an analysis of the facts.

Did the girl have the capacity to protect herself from harm? Let’s assume that the girl was 13 years old and in the advanced math/science track. Her IQ was above average and she didn’t have any known learning disabilities. Clearly, she would have been able to understand the principal’s announcements, read the fliers and the warning signs, and act in a way to prevent herself from injury by skateboarding in the parking lot.

Were the dangers in the parking lot clear? The slope was obvious to anyone near the edge of the parking area. The utility poles were noticeable to any person in the lot. The school posted numerous signs forbidding students to skateboard in the parking lot, and any reasonable person would see the signs. Several signs were posted near the slope and at entrances to the lot from various roads and walkways. The hazards, it could be argued, were clear to a reasonable student of the same age and capacity.

Did the school adequately exercise its duty to protect? In our case, a defense attorney may have a strong argument that the school acted appropriately under the circumstances — and that the student did not. The student had the capacity to understand that if she acted in a way counter to the school’s warnings, she risked placing herself in harm’s way. The student had a duty to protect herself from harm. Through her actions, she contributed to her own injury and subsequent death.

What was happening at the moment of injury? The girl and her friends were skateboarding in the parking lot — an action that was prohibited. There were no distractions in the lot that would have rendered her unable to control her skateboard before she went over the edge of the slope. In fact, it was learned that the injured student purposefully headed toward the slope while telling her classmates, “Look, I’m going to skate to the bottom!”

Not all liability claims are so clear-cut, and other intervening variables may warrant consideration when assessing a case involving student injury or death. Our example, however, provides a format for a plaintiff attorney to consider the merit of a case or for a defense attorney to evaluate the strength of a contributory negligence defense.

Summary

Determining the extent to which a person may be responsible for his or her own injury is critical in the school context, where the school is obligated to protect the health, safety, and welfare of students. Because of age or disability, some students may require greater supervision than others. Some students are bright and can understand the dangers that await them if they ignore warnings and choose to take a risk that could lead to injury. Two key variables in cases involving student injury and death are whether a school’s warnings to students about the dangers and risks were adequate and whether a student had the capacity to understand those warnings. When the answer to both is “yes,” then an examination of whether the student may have contributed to his or her own injury is warranted. The student’s actions may prove to be a strong defense against a liability suit.

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.

School Bus Accident Liability, Negligence and Standards of Care Guidelines

School Bus Standards of Care

School Bus Accident Liability and Negligence

A school’s duty to protect its students from harm doesn’t begin and end when the bell rings in the morning and afternoon. Transporting students safely to and from school is an important consideration in a school’s risk portfolio. This area, however, is highly nuanced, and it’s not always immediately clear who is liable for a student’s accident-related injury — especially when transportation is contracted out to a private bus company.

What should an attorney consider when representing a plaintiff or a defendant in lawsuits involving school bus accidents? Here’s a roadmap to follow regarding school bus accident liability, negligence and standards of care.

Determining Duty to Protect: School District vs. School Bus Company

Attorneys should first determine which entity was responsible for protecting the passengers on board. If the school owns its own buses, the school has the duty to protect students and others on the bus from harm. If the school contracts out transportation services to a private bus company, the contract between the school and the bus company should specify duties.

As an example, schools that transport students with significant physical disabilities typically provide specialized training for bus drivers and aides. This training may include, among other things, how to harness a wheelchair to the floor of the vehicle and how to intervene if a child becomes disruptive. Such training is a reasonable expectation for protecting students’ safety. But is the school responsible for the training provided by a private bus company? Or does that responsibility lie with the contractor?

This responsibility, if delegated to the bus company, should be articulated in the contact. By requiring that drivers and aides be trained, the school recognized its duty to protect its students. The school can delegate this responsibility, but for liability to fall to the bus company in the case of an accident, this must be in the contract. If a bus carrying students in wheelchairs is involved in an accident and a child’s wheelchair was not properly harnessed, broke loose, and caused injury, then the school may be liable if it failed to spell out the private bus company’s requirement to train its staff in this manner.

In another example, if the contract between a school and a bus company requires that the company provide booster seats for all preschool passengers, the company has a duty to provide the seats and to ensure they are being used. The attorney should assume that school officials determined that the seats are necessary to protect the students from harm. If a child is hurt in an accident because he or she was not in a booster seat, as required, the bus company may be liable for the child’s injury.

Another contract between a school and a private bus company might require the company to provide a bus aide who is trained in how to de-escalate confrontational encounters between students with behavioral problems. Now, consider this example: Despite the presence of a trained aide on the bus, students got into a fight. Distracted, the driver hit a guardrail, and a student was injured as a result. The bus company may be liable for the injury, but what is the duty of the school to ensure that the private bus company is complying with the contract? Ultimately, the school is responsible for the health, safety, and welfare of its students. Should the school check periodically on the implementation of specific safety requirements in the contract? Or can the school delegate this responsibility entirely and assume that the private bus company will comply?

This example illustrates how it may not always be clear whom to name in a complaint. In the case of a contract like this, no professional standard of care exists in the field to provide clear guidance on whether the school must ensure that the contract is being fulfilled and that its students are safe.

Determining Standards of Care in School Bus Accident Lawsuits

Schools that maintain their own bus fleets, as well as private bus companies, must meet federal and state standards. These include:

  • Maintaining buses in safe operating condition through a systematic preventive maintenance program
  • Inspecting buses at least semiannually
  • Requiring drivers to perform daily pre-trip inspections of their vehicles and the safety equipment (such as the fire extinguishers), and to report promptly and in writing any problems that may affect the safety of the vehicle’s operation or result in its mechanical breakdown

Schools and private bus companies add their own standards when they develop driver manuals, training programs, and procedures such as assigning bus aides and checking that video cameras work properly. Therefore, attorneys should be familiar not only with federal and state requirements, but also with school standards — and, when a private transportation contractor is involved, the bus company’s standards as well. Manuals, written procedures not included in the manuals, training program materials, and any other written or oral communication that can be construed as policy should be obtained through discovery and carefully reviewed to identify all applicable standards of care before an investigating into the cause of an accident and injury begins.

An attorney will want to determine whether a school or private school bus company violated a federal or state standard. In addition, the attorney needs to determine whether any locally identified standard or a standard identified through a contract was breached, and whether that breach created a situation that placed passengers in harm’s way.

Determining Negligence and if Standards of Care Were Met

Once the attorney has an understanding of these standards, and after questions about who had the duty to protect passengers are answered, the next step is to investigate the cause of the accident. If the driver lost control, was there, for instance, a flat tire and the driver maintained the best control possible but the accident happened anyway? Was there a mechanical problem with the bus that should have been noticed through reasonable inspections and corrected? Did a fight on the bus distract the driver? Did the driver swerve to avoid hitting something on the road?

Here are the steps to follow:

  1. Review and list all federal, state, and local standards that apply, such as inspection routines, licensing of the driver, assignment of aides to the bus, and training of the driver and/or aide.
  2. Review and analyze the discovery, including the accident report and other documents, to identify what standards, if any, were breached.
  3. Review the information in the discovery against the standards that were breached and determine whether a breach of any of the standards may explain the accident and whether a breach may constitute negligence and can be a proximate cause of the accident resulting injury.

As attorneys know, proximate cause can be elusive — or sometimes, it can be right up front. If, for instance, the driver was distracted by a fight on the bus and there was no bus aide present as required by local standard, this breach of duty may be determined to be the proximate cause of the accident. But the next question that must be answered is: Even with that breach of duty, would the fight have occurred anyway? If an appropriately trained aide was on the bus, would the aide have been able to end the fight before the driver was distracted?

If a contracted bus company had a policy of weekly in-depth inspections of buses and a brake failure resulted in injury, the company may be liable if it inspected and discovered a problem but didn’t repair it. Investigating the inspection routine and determining whether a reasonable inspection would have identified the brake problem is an important step. If the bus company failed to inspect the condition of brakes, as required by its inspection protocol, and that failure can be shown to be the proximate cause of injury, the bus company may be held liable as a result of the breach of its own standard.

Negligence and School Bus Accident Personal Injuries

A 1986 case, Settles v. Incorporated Village of Freeport (132 Misc. 2d 240, 503 N.Y.S.2d 945 [N.Y.Sup.Ct. 1986]), demonstrates these principles: When a school provides transportation for students, it has a duty to transport them safely, and the school ordinarily cannot avoid its liability for failing to transport its pupils safely by delegating performance of its duty to a private school bus company. The court went on to say that generally, the party that engages the private school bus company is not responsible for the negligence of the company or its employees, and the doctrine of respondeat superior does not apply, However, where work involved may be characterized as inherently dangerous (transporting school children), the duties of the employer (the school) are nondelegable and the school may be liable for the negligence of its contractor (the bus company) if it did not reasonably monitor the contractor’s compliance activities. Further, the school remains liable for injuries caused by negligence of the private bus company if the school fails to use reasonable care to select a competent contractor, where the contractor was in fact incompetent.

For a plaintiff’s attorney, the first foundational fact to develop is that school bus accidents ordinarily do not happen without negligence. A defendant’s attorney, however, may argue that the accident does not support an inference that negligence was involved.

The plaintiff’s burden of proof is not to eliminate all possible alternative causes of injury. The burden is to show that the more probable cause was negligence. If there was negligence, is it attributable to the school or the contracted school bus company? Would this event ordinarily occur in the absence of negligence? The defendant’s attorney may argue that any negligence is attributable to a third party, and not to any breach of standard of the defendant’s duty.

In light of the many questions and potential variables involved, the establishment of negligence, proximate cause, and who bears ultimate responsibility for the safety of students in transit can be challenging. An expert witness specializing in school safety issues can help plaintiff’s and defendant’s attorneys analyze the facts and determine the root of risks that materialize and result in student injury.