The return of students to Sandy Hook Elementary School in Newtown, Conn., reminds us that a safe school is one where students can learn and teachers can teach in an environment free of threats, intimidation, violence, and fear. Children and parents should never have to experience the pain they endured in Newtown — especially in the midst of a holiday season that celebrates mankind’s desire for peace on Earth.

In a recent blog (“3 Questions in the Wake of the Sandy Hook School Shooting”), I introduced three things we must ask ourselves as a nation:

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 gunman had received such services, could this have been avoided?
3. Is it necessary to allow semiautomatic weapons in the hands of civilians?

Since then, there has been a lot of discussion about the issues raised in questions 2 and 3. In this article, I will delve into the issues inherent in the first question: the standard of care in the field of school safety and a school’s liability for a student injury that resulted from a breach of that standard.

Foreseeability

One of the most important legal concepts I consider in school safety cases is foreseeability. The scope of liability hinges on whether there is a foreseeable risk of injury. The conduct of a school administrator or employee cannot be considered unreasonable if the risk is not foreseeable. If an act cannot reasonably be anticipated, or if its occurrence — in the eyes of reasonable people — would be unlikely, it cannot be said that the event was foreseeable. If it was not foreseeable, there was no duty to provide against it.

In the case of Sandy Hook Elementary School, then, the question becomes: Would a reasonable and prudent school administrator have been able to foresee the killing of so many children by a disturbed individual with a semiautomatic weapon?

Let’s return to this question after looking at some case studies of student injury or death that revolved around the issue of foreseeability. My firm, Education Management Consulting, LLC, provided review and analysis and expert reports in each of these cases, and in some instances, court testimony.

The school shooting.In a private school in a nice neighborhood, a woman walked in the door and was greeted by the secretary. These two people knew each other from the neighborhood. There was no buzz-in or camera system at this school, but even if such systems were in place, it is very likely that the woman would have been admitted. The visitor said she was bringing her nephew’s lunch to his class because his mother was not able to come to the school.

Instead of a peanut butter-and-jelly sandwich, she had a gun in the bag. She walked to the classroom, opened the door, and shot and killed the teacher in front of 24 first graders. The visitor and the teacher had been involved in a neighborhood feud. The school was sued for negligence. Could it have done anything differently?

After review and analysis, it was my opinion that the school had no need for a system for checking whether a visitor was carrying a weapon. The school was in a safe neighborhood and a weapon had never been brought into this school. It could not be foreseen that a feuding neighbor would ask to deliver a lunch to her nephew — only to shoot a teacher. The school could have done nothing different to prevent this tragedy. I determined that the school had met the standard of care in accordance with the customs and practices of the field and was not liable for the death of the teacher.

The school bus stop. A school assigned a bus stop that required two sisters to cross a busy four-lane highway. Although there was a traffic light at the intersection, there was no pedestrian crosswalk or “walk/don’t walk” signal. The mother had tried, unsuccessfully, to have the bus stop moved to the other side of the street. One dark morning, the sisters crossed the highway to the bus stop and were hit by a car.

My opinion was that the school breached the professional standard of care, failed to act reasonably, and placed students at risk of harm when it assigned the bus stop where it did. The school would not have experienced any economic hardship by placing the bus stop on the other side of the street. The school was on notice that the parent was concerned about her daughters’ safety when she asked that the bus stop be changed. Any reasonable administrator would have foreseen the potential for student injury when the bus stop was placed in an area that required students to cross a busy highway.

The sex club.When the parents of an eighth grader found out that he was part of a “club” involving other students and their teacher, they sued the school under Title IX, which protects students from sexual harassment. The boys were having sex with their teacher at her house. The suit claimed, among other things, negligent hiring, supervision, and retention of the teacher.

In this case, I focused on whether the school had actual knowledge of the activity and whether the administration acted deliberately indifferent in the face of that knowledge. If so, did that deliberate indifference interfere with the student’s right to an education? These are the elements to consider in Title IX discrimination cases.

My review and analysis uncovered no evidence that anyone employed by the school had knowledge of this activity that would have caused a reasonable administrator to be concerned that this teacher was sexually harassing students. None of the students informed anyone at the school that their teacher was taking them to her home, nor did any inform their parents. Unaware of what was happening, the administration had no reason to act. Without that knowledge, the administration had no duty to supervise the teacher or students differently. My professional opinion was that the school could not have foreseen the events that ensued and thus was not liable for this teacher’s actions.

The TV cart.A third-grade teacher asked two students to return an audio-visual cart topped by a 50-pound television to the library — and told them not to fool around on the way. Kids being kids, however, the two made a game of it once in the freedom of the hall. One student pushed the cart from behind while the other mounted its front, holding on with both hands. The student pushing let go of her grip and allowed the cart to tip over. The TV fell onto the other student’s head, causing him permanent brain damage.

Any reasonable person — and to a higher legal degree, any reasonable and prudent teacher — would have considered the danger of sending two third-grade students into the hall, unsupervised, with a TV and an AV cart. My opinion was that the teacher breached the professional standard of care.

The javelin.Students were throwing javelins during track-and-field practice. At the end of the day, the coach announced, “Practice is over.” Several students still had javelins, however, and the coach did not collect them right away. One student was downfield retrieving her javelin when another took just “one more throw.” The javelin hit the girl and embedded in her head.

Javelins are considered weapons, and their use must be supervised carefully. It is obvious to a reasonable person that to avoid injury, a coach must be diligent in his or her supervision. My opinion was that the coach acted improperly and outside the professional standard of care. The coach should have collected and secured the javelins first, then announce that practice was over. This would have given the coach control over the javelins and the behavior of the students in his care.

Any reasonable professional in a similar circumstance would have foreseen that if practice had ended, students had vacated their practice stations on the field, and javelins had not been collected, there was a possibility that a student would be injured.

Was Newtown foreseeable?

A Hartford attorney recently withdrew his petition to file a lawsuit against the state of Connecticut claiming, among other things, that the Sandy Hook murders were foreseeable. The proposed lawsuit indicated that the state Board of Education, Department of Education, and education commissioner failed to provide a safe school setting; failed to review annual strategic school profile reports from the school district and Sandy Hook Elementary School; and failed to require the school and the board of education to implement an effective emergency-response plan.

Back to our question: Would a reasonable and prudent school administrator have been able to foresee the killing of so many children by a disturbed individual with a semiautomatic weapon? The answer, in my opinion, is no.

Solely on the basis of information reported in the media, I have drawn a preliminary opinion that Sandy Hook Elementary School did not appear to have breached a professional standard of care and did not place students in harm’s way. It is my opinion, based on the information I have reviewed, that the Newtown Board of Education, its administration, and other employees acted reasonably and met the standard of care in accordance with the customs and practices of the field.

The school had appropriate safety measures in place. Just like more than 95 percent of U.S. schools, Sandy Hook Elementary locked its doors when classes started that morning, and a system to check visitors before they were allowed into the building was in place. The gunman shot his way into the school. Teachers acted quickly to protect their children. Told that the school was in lockdown, they moved the children to designated safe areas.

At Education Management Consulting, LLC, our team of highly trained professionals reviews and analyzes cases like these. Sometimes, we must tell a client-attorney representing a school or agency that it breached a standard of care and placed a child in harm’s way. Because we provide exceptional expert-witness services, we do not advocate for one side or another. We advocate for a comprehensive review and analysis of the issues, development of a thorough expert report, and the provision of competent expert testimony.