LIABILITY OF SCHOOL DISTRICTS AND SCHOOL PERSONNEL FOR NEGLIGENCE

A tort is a civil wrong–a violation of a duty–that causes harm. In the U.S. judicial system, an individual who is injured by a breach of duty can sue the other person to collect compensation for that injury. There are basically three types of civil wrongs.

• Intentional torts include trespass, assault, battery and defamation.
• Unintentional torts include negligence and strict liability. Strict liability is when someone is held liable, even though they are not at fault. It is often used when an individual is engaged in an ultrahazardous activity.
• Constitutional torts occur when a government agent has violated an individual's constitutional rights.

Some intentional torts also can be crimes, and a tort-feasor can be required by a civil court to pay money damages to compensate the injured person and also be required by a criminal court to pay a fine or suffer imprisonment.

Negligence differs from these in that it is an unintentional tort. It occurs when one person unintentionally causes an injury to another through a breach of a duty or violation of a general standard of care. The general standard of conduct is conduct that reasonable people may expect others to observe as they go about their daily lives. Negligence is the failure to exercise due care when carrying out a duty or subjecting another to a risk that causes harm. A negligent tort is a tort that, although not intended, was committed in disregard of the rights or reasonable expectations of another person. This is the area of tort law that has given rise to the most litigation.

The money a tort-feasor must pay to compensate the accuser for the harm the accuser has sustained is called damages. Factors for which money damages are awarded in a tort case include property damage, medical expenses, pain and suffering, and lost wages. If the conduct of the tort-feasor is a particularly outrageous or offensive violation of the reasonable standard of conduct expected, the civil court will add to its award of regular damages to the injured person and amount of money known as exemplary, or punitive, damages. The damages constitute a civil, or private, fine against the tort-feasor and are analogous to the fines imposed by a criminal court.

The sixth edition of Black's Law Dictionary defines negligence as "the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable or prudent man would not do."

Schools and their employees are not automatically responsible for every injury that may occur within the school. In order to be held liable for negligence, the following four questions must be answered in the affirmative:

1. Did the defendant owe a duty to the plaintiff?
2. Did the defendant breach that duty?
3. Was the plaintiff injured?
4. Was the breach the proximate cause of the injuries?

Further, there can be no defenses to the action. Generally speaking, to recover damages, it must be shown that the defendant owes a duty to the injured person, that the behavior fell short of that required, that this caused a real injury to the person, and that the injured person was not responsible for causing the injury.

Duty

There is a duty of due care that the law recognizes one person owes to another. This duty may arise from a contract, a statute, common sense, or a special relationship the parties have to one another. Regarding students, the courts have found that schools and their employees have the duty to supervise students, provide adequate and appropriate instruction prior to commencing an activity that may pose a risk of harm, and provide a safe environment. Usually, that duty extends to students while they are in the custody or control of the school. Schools may have a duty to supervise students off school grounds when they have caused them to be there such as while on field trips or extracurricular events.

Schools may have a duty to supervise students on school grounds before and after school when they have caused them to be there, for example, when the bus drops them off. A duty can be extended if a person assumes additional responsibilities, such as assuming the duty to supervise students before and after school. Schools may acquire a duty to supervise when they have, by their previous actions, assumed the duty to supervise at this time such as when some staff has supervised intermittently or consistently before official time to arrive.

Schools also have a duty to warn of known dangers even when they do not have a duty to supervise. In the general workforce, a supervisor, and ultimately the company, is responsible for the negligent acts of employees under the doctrine of respondeat superior. However, in education, generally no one is automatically responsible for the acts of another. School administrators are not automatically responsible for the negligent acts of teachers. In school situations, usually a plaintiff must find a separate duty on the part of each defendant.

Breach of Duty

Once a duty has been established, the injured individual must show that the duty was breached. The duty has been breached when the individual unreasonably fails to carry out the duty.

In carrying out duties, one is expected to act as an ordinary, prudent, and reasonable person considering all of the circumstances involved. The court or jury makes a determination of how the reasonable person would have acted; if the individual did less, he or she is found negligent.

The standard varies for professionals; for example, a reasonable teacher or principal. Defendants who are professionals will be held to a standard based on the skills or training they should have acquired for that position. Thus, the question to be answered is: What would the reasonable professional have done under the same or similar circumstances?

The standard varies also with the individual circumstances of the situation. Each situation gives rise to a unique set of circumstances. Some of the factors which may be considered in determining the standard of care include the following:

• Age and maturity
• Nature of the risk
• Precautions taken to avoid injury
• Environment and context (including characteristics of students, location, physical characteristics, and so forth)
• Type of activity
• Previous practice and experience

In determining negligence, children are not held to the same standard of care as adults; instead their actions must be reasonable for a child of similar age, maturity, intelligence, and experience. Some states further classify children according to a presumption of capabilities. In those states, children under seven are not held responsible for negligence or unreasonable acts. The noted exception, however, is that a child may be held to an adult standard of care when engaged in an adult activity, for example, driving a car or handling a weapon.

Injury

The plaintiff must show an actual loss or real damage, for instance a physical bodily injury or a real loss. Compensation may include direct monetary damages for medical expenses, replacement of property, lost wages, and so forth.

The plaintiff may recover also for intangible injuries, such as pain and suffering, and emotional distress. In some situations an intangible injury is sufficient for recovery. However, there are states that require at least a physical manifestation of an injury if there are no tangible injuries.

Causation

To recover for an injury, the plaintiff must show that the defendant's negligence was the cause of the injury. If the accident would have occurred anyway, there can be no liability.

The defendant's negligent act must be a continuous and active force leading up to the actual harm. When there is a lapse of time between the defendant's negligence and the injury, other contributing causes and intervening factors may be the actual cause of the injury.

When there is a series of events leading up to an injury, the person starting that chain of events may be liable for the resultant injury if it was a foreseeable result of his negligence. If the injury at the end of the chain of events was not a logical (foreseeable) result of the negligence, there is no liability.

When another independent act occurs in between the defendant's negligent act and the plaintiff's injury, it may cut off the liability. In other words, someone else's actions may have been the cause of the injury. Intervening acts will not cut off liability when those intervening acts were foreseeable.

Defenses

Once the basic elements have been established, the court looks to the possibility of defenses before a damage award is granted. Defenses vary greatly between states; the most common defenses being governmental immunity; assumption of the risk; and comparative or contributory negligence.

In states that still have strict governmental immunity, an individual may not bring legal action against the state. In these states, immunity is a complete bar to an action. Governmental immunity has greatly eroded in recent years, generally allowing an individual to recover for injuries, but not allowing an action that would undermine the state's decision-making power when carrying out its state or official functions. Governmental actions are those the state undertakes as a policymaker. Thus, an individual is not allowed to sue the school for an injury caused by a policy decision such as making a curriculum choice or setting the date and time for school to start. Some states have abrogated sovereign immunity up to a particular dollar limit or to the extent of insurance coverage. These states usually have strict notice and pleading requirements at the outset of a legal action.

Assumption of the risk is also an affirmative defense that, if successful, presents a complete bar to plaintiff's recovery. This defense is based on the idea that if the plaintiff knowingly and voluntarily accepted the risks of an activity, he or she should not be allowed to recover for injuries caused by those known risks. For knowing acceptance to occur, it is important that all risks inherent in an activity are apparent or explained and that they are voluntarily assumed.

Students in athletic activities are asked to assume the risk of playing that sport. It must be shown that the plaintiff understood how the specific activity was dangerous and nonetheless voluntarily engaged in it. Students should be told of the risks of injury during the regular course of play; therefore if an injury were to occur, the school would not be responsible.

Many people mistakenly believe that parents assume all risks for their children when they sign permission slips. While the parents may assume the normal risks associated with the activity, they do not waive their rights for any and all injuries that may occur. They cannot assume risks of which they have no knowledge. In sum, some permission slips are worthless in terms of waiving liability. They often only serve to provide parents an opportunity to opt their children out of certain activities.

The defenses of contributory and comparative negligence offer a complete bar or a reduction in the damage award due to the plaintiff being partially responsible for his or her own injuries. Making this determination is similar to making the determination of the defendant's negligence–did the plaintiff fail to exercise reasonable care, which resulted in the injury. Contributory negligence is a total bar from recovery. Under contributory negligence, if the plaintiff is responsible for the injuries sustained in any way, no matter how slight, he or she cannot be awarded any damages. Recognizing that this all-or-nothing approach often results in severe consequences, most states have moved to the less severe system of comparative negligence.

In comparative negligence, the damage award is apportioned depending on the degree of fault or contribution to the injuries. Comparative negligence is distinguished between pure and modified forms. Pure comparative negligence allows the plaintiff to recover any amount of damages for which the defendant was negligent. In states that have adopted a modified comparative negligence, damages are awarded only if the defendant's negligence is greater than that of the plaintiff. In the early twenty-first century, a majority of states operate within some type of comparative negligence system.

Malpractice

As in medical malpractice, the term educational malpractice refers to negligence on the part of a professional. However, the courts have not recognized educational malpractice as a cause of action for damages. The seminal case is Peter W. v. San Francisco Unified School District (1976). Here the student was graduated from high school while still being illiterate. The court found no legal duty on which to base an action against the school district. Further, it concluded that there was no workable standard of care for teaching against which the defendant's actions could be judged. Finally, the court noted that the degree of certainty that the plaintiff had suffered any injury, the extent of the injury, and the establishment of a causal link between defendant's conduct and the plaintiff's injuries were uncertain. The primary motive for courts not recognizing educational malpractice as a cause of action is generally public policy. The concern typically expressed is that recognition of this cause of action would require the courts to make judgments on the validity of educational policies. Additionally, court have noted there are other, more appropriate avenues of relief if an individual is dissatisfied with the public schools, such as individual administrative review and school board elections.

See also: Principal, School; School Boards; Sports, School.

bibliography

Alexander, Kern, and Alexander, M. David. 2001. American Public School Law, 5th edition. Belmont, CA: West/Thomson Learning.

McCarthy, Martha M., and Cambron-McCabe, Nelda H. 1992. Public School Law: Teachers' and Students' Rights. Boston: Allyn and Bacon.

Underwood, Julie K. 2000. "Negligence." In A School Law Primer–Part II, ed. National School Boards Association Council of School Attorneys. Alexandria, VA: NSBA Council of School Attorneys

Julie K. Underwood