School Liability and Negligent Supervision of Children with Disabilities

For schools, daycare centers, after-school programs, and camps, children with disabilities often present significant supervisory challenges. If a special needs child is seriously hurt or killed at school because of failure to address their needs adequately, negligent supervision may be viewed as a proximate cause. But what constitutes reasonable supervision of children with behavioral or physical disabilities? It depends on the student’s unique needs and the school’s standards for protecting that student from harm. Cases of negligence in schools can arise when schools fail to set such tailored standards.

Students with developmental disabilities, autism, mental illness, or physical disability require specialized programs and services, highly qualified personnel, or one-on-one assistance to protect them from harm. Thus, when a school is aware of the characteristics and needs of a child with a disability, it must supervise the student to ensure his safety beyond the professional standard of care for the general student population. A student’s death or serious personal injury stemming from a failure to adhere to this higher standard may constitute negligent supervision and render the school liable for damages. In this article, an education expert witness explores appropriate standards of care for children with disabilities in schools and the questions, “What is an example of a hostile environment?” “What constitutes negligent supervision?” as well as courts’ decisions in various cases of negligence in schools.

Student Safety and Supervision Standards

Consider a school or other agency that enrolls a child with behavioral or physical conditions that require specific interventions to keep him safe. In this case, the school or agency’s duty to supervise and protect this special needs child from getting hurt at school exceeds general or even specific supervision. General supervision is provided in a situation like recess on the playground, where two or three teachers supervise a group of students. Specific supervision is required when a student is engaged in an activity that presents an inherent danger if the student doesn’t receive careful instruction, such as the singing tools during woodshop. For a child with a disability, however, the standard of care extends to a much more child-centered, individualized focus. In school liability and negligent supervision cases, the known characteristics of the child’s behavior or physical limitations frame an assessment of the reasonableness of supervision.

Is it reasonable for an elementary school principal to assign three playground aides to supervise 85 fifth-grade children, none of whom have any special needs, on a fenced-in playground after lunch? Is it reasonable for a residential treatment center administrator to approve an afternoon walk in a forest with 15 children and one teacher with the knowledge that one of the children has a history of running and leaving the protective supervision of staff?

The answers are “yes” in the first example and “no” in the second.

The Individuals with Disabilities Education Act requires that a child with a disability who qualifies for special education and related services must have an individualized education program (IEP) tailored to his or her needs. When the child exhibits behavior problems that interfere with her education or the education of others or that might cause injury to her or other students, the IEP must include a behavioral plan. Once the school identifies the behavior issues and develops an intervention plan, this becomes the professional standard of care specific to the student. The IEP addresses the type and level of supervision that the school has determined necessary to protect the child from harm and must be enforced at all levels of their education by all relevant personnel to ensure the special needs child is not hurt at school and avoid any school liability and negligent supervision lawsuits that may ensue.

Because the child in our example above has a history of running off during class trips, the appropriate professional standard would likely require that an additional aide accompany her on trips. If another child has a history of getting out of his seat on the school bus, running up and down the aisles, and distracting the driver, the appropriate professional standard of care might be to assign him a bus aide.

If the defined standard is breached and the child or others are injured, that breach might be considered a proximate cause of injury — and the concept of sovereign immunity would not apply. In the absence of immunity, courts have upheld student injury claims during cases of negligence in schools stemming from failure to provide a reasonably safe environment or adequate supervision.

Schools and agencies, therefore, must identify and promptly address any issues that may contribute to a hostile environment for children with disabilities. So, what is an example of a hostile environment? In this context, a hostile environment is when a school or agency environment becomes unbearable for a child with disability due to ongoing adverse conditions that prevent them from fully benefiting from fair and equal education or threaten their safety. These may constitute failure to provide appropriate supervision, bullying, harassment, discrimination, sexual abuse, failure to provide necessary accessibility facilities, unsafe premises, lack of specialized programs, and more.

Negligent Supervision

Cases of negligence in schools and agencies have stemmed from lax safety and security measures that lead a special needs child to get hurt at school.

Last month, a 12-year-old student with autism disappeared from a Bronx, N.Y. school for hours before he was found in Times Square. He left his classroom and was seen running down a staircase. The details of this student’s history are publicly unknown. Still, if the school had any prior experience of this student leaving his classroom unsupervised, it would have been the school’s duty to provide individual close supervision for the student. It might have been necessary for a classroom aide to be with him, one-on-one, during the day to supervise his movements through the school. The school had an obligation to consider the student’s capacity, determine whether any related behaviors would likely place him in harm’s way, and take reasonable steps to prevent damage through appropriate supervision.

The student was found in this case, and no harm was done to him. But his story could have been much different, as with the case of Avonte Oquendo, the 14-year-old boy who slipped past a security desk and disappeared from his Queens, N.Y. school last October. Oquendo, who has autism and cannot speak, was missing for months before he was found dead. The investigations into the circumstances of both cases continue.

In another example of potential negligent supervision, the City School District of New Rochelle, N.Y., was ordered last August to pay compensatory damages after it failed to evacuate two students in wheelchairs during a fire emergency. The U.S. Attorney for the Southern District of New York found that New Rochelle High School violated the Americans With Disabilities Act in not having an evacuation plan for students with mobility impairments. The students, one of whom has cerebral palsy, were left in a third-floor classroom while the rest of the school was evacuated. School officials, who have contested the U.S. Attorney’s findings, said their plan for dealing with students with disabilities in an emergency was to get them to a “safe room” where first responders can find them. Still, the safe room closest to the students required maneuvering downstairs. However, New York State law requires a complete evacuation during an emergency.

Even if the school had been found in compliance with the law, this plan was inadequate for a child in a wheelchair. The school had a duty to consider the students’ disabilities and their inability to navigate stairs and to plan adequately for their evacuation in the event of an emergency. From our earlier discussion of “What is an example of a hostile environment,” this borders on discrimination and failure to provide proper disability facilities.

Court Rulings on School Liability and Negligent Supervision Cases

Numerous cases of negligence in schools have also involved a lack of or inadequate supervision of students when using equipment in the laboratory, playground, and other activities. However, even though a school has a higher duty to supervise students with special needs, not every student injury results from negligence by the school or its personnel. Again, liability depends on the circumstances. Let’s take a look at two cases.

In Montana, a teacher had forbidden a developmentally disabled student from using specific equipment in the playground. Her “rule” became the professional standard of care for this child. On the day he slid down a pole on this equipment, fell, and fractured his tibia, his teacher was absent. At the time of the accident, the substitute teacher and another were on the playground supervising students. The boy’s parents sued the district for failing to manage their son correctly. A jury determined that there was no negligent supervision on the part of the substitute teacher and held for the district.

The parents appealed to the state Supreme Court, which observed that a verdict cannot be reversed when supported by substantial, credible evidence. In this case, the substitute teacher testified that she was watching five students, all requiring special attention. All parties agreed that the substitute teacher had a duty to supervise the student closely. However, the fact that the substitute had failed to see this student climbing the equipment did not constitute a breach of duty (Morgan v. Great Falls School Dist. No. 1, 995 P.2d 422 [Mont. 2000]).

In this example, the professional standard of care was that the student would not play on the equipment. However, the focus in this case was not on this standard but on the general supervision provided at the time. Regardless of the standard, the court determined that because the substitute teacher provided supervision, as required, the school was not liable for negligent supervision resulting in his injury. In other words, the teacher was doing her job. Would the result have been different if the complaint focused on the playground rule set by the teacher and the school’s duty to ensure that the substitute teacher enforced the rule?

Negligent hiring, supervision, and retention of school bus drivers and other school employees can also lead to a special needs child getting hurt at school and cause severe cases of negligence in schools.

In Louisiana, a student with spina bifida and hydrocephalus was unable to walk. The school provided transportation in a specially equipped bus. A bus aide was required to secure the student in the wheelchair with a lap restraint, but neither the wheelchair nor the bus provided the means of securing his upper body. After picking up the student, the bus driver backed the bus into a car as his mother watched. She asked the child if he was hurt. The boy didn’t respond, and the mother permitted him to continue to school. When he returned home with a bruised forehead and complained of head and back pain, the family took him to an emergency room. The family sued the school board for negligent supervision, seeking reimbursement for treatment costs. A court found the school liable for the boy’s injuries.

An appeals court found ample evidence that the student’s injuries were caused by the accident. There was also sufficient evidence to show that the student had suffered ongoing physical pain as a result of the accident. The court affirmed the judgment (Marshall v. Caddo Parish School Bd., 743 So.2d 943 [La.Ct.App. 1999]).

In this case, would the student have been protected from harm if the child’s upper body had been secured? More than likely, he would not have been injured. This raises an important question: Would a reasonable person know that if the child’s upper body was not secure in his wheelchair and there was an accident, the child would likely become injured? If injury is foreseeable, those in charge are responsible for ensuring safety and avoiding cases of negligence in schools. This student’s safety could be reasonably assured if those in charge had provided him with a wheelchair and a bus equipped to secure him across his lap and upper body.

Summary

When schools and other agencies responsible for the care of children know that a student’s behavioral or physical disability may risk that special needs child getting killed or seriously hurt at school or place others at higher risk, they have a higher duty to supervise students in a manner specifically appropriate for the child’s condition. A reasonable standard of care is tailored to the student’s unique history and needs. Failure to establish and follow such a standard may attract costly cases of negligence in schools and leave a school liable in the event of a casualty.

Suppose the symptoms of a child’s disability suggest to a reasonable person that, without special supervision, the student might be injured or even killed, and the responsibility for providing it is not carried out. In that case, the school will likely be held liable for negligent supervision and associated damages in the event of a student’s death or injury. If, on the other hand, the school provided an appropriate IEP and level of supervision but an injury still occurred, the school is unlikely to be held liable. Assessing the individual characteristics and emotional and physical needs of students with disabilities and developing an appropriate safety plan is a clear duty of the school.

Expert Witness Services in School Liability and Negligent Supervision Litigation

At School Liability Expert Group, having worked with hundreds of law firms in the United States on school and agency liability cases, plaintiff and defendant attorneys, parents, schools, and other child- and youth-oriented agencies can count on our court-qualified experts for prompt, reliable, and comprehensive expert witness services and consultations in cases of negligence in schools where a special needs child is hurt at school. Book a call today for assistance with a negligent supervision case.