Tort Liability in Schools and Districts

tort
civil wrong for which a remedy (i.e. damages) maybe obtained, it is not a crime, it comes from civil law, it pertains to the rights of citizens, civil proceedings are usually initiated to compensate and injured individual
Criminal proceedings
are intended to punish wrongdoer and protect the public from the wrongdoer
dual application of tort and crime
(i.e battery) 1. Tort law many result in civil lawsuits against districts and employees
2. Criminal law may result in criminal actions against employees
negligence tort
(i.e. general negligence and educational malpractice)
1. failure to exercise the standard of care that a reasonable prudent person would have exercised in a similar situation
2. State or federal law? State law applies to negligence cases
3. In order to find negligence on the part of a defendant, the following four prong test must be analyzed (i.e. all plaintiffs, in every negligence case, must establish these four prongs:
a. Duty: the defendant must have a duty of care to the plaintiff recognized under the law
b. Breach: there must negligence constituting a breach of duty (this prong is the major task for a plaintiff to establish or prove)
c. proximate cause: a connection/nexus must exist between defendant’s conduct and injury or in other words, there must be a relationship between defendant’s action and/or the lack of action in the resulting injury
d. actual loss/injury: there must be an actual loss or injury: Big deal if injury is so insignificant that it is negligible
intentional tort
(i.e. assault/battery and defamation)
constitutional
(i.e. 42 U.S.C. statute 1983
breach
negligence constituting a breach of that duty has failed to meet its duty of care regarding “standards of care or proper supervision” plaintiff required to prove that defendant (i.e. reasonable person) in a given situation (normal intelligence, perception, attributes)
Dailey v. Los Angeles Unified School District (1970)
Facts: two 16 years old were slap boxing in the boy’s gym, when one boy fell down, hit his head and died. The supervising gym teachers were in the office playing cards instead of supervising the gym
Issue: parents sued for wrongful death and alleged that school failed to supervise the students thus causing their son’s death
Analysis: go through 4 prong negligence test
1. Duty-defendant must have a duty of care to the plaintiff under the law that is court held that duty to supervise gym existed
2. Breach-there must be negligence constituting a breach of duty (i.e. court held that teachers should have been in gym)
3. Proximate cause-a connection must exist between the defendant’s conduct and injury (i.e. court found proximate cause) it exists
>>>Actual loss/injury: there must be an actual loss or injury (i.e. student died)
>>>Conclusion: district was responsible and liable (during school hours, school should be providing supervision of students at all times, and those supervising must be clear on expectations of student conduct)
proximate cause
a connection must exist between the defendant’s conduct and alleged injury
1. Acts: was it an act or failure to act?
2. Time: was act close in time to injury?
3. Foreseeable: was injury foreseeable?
actual loss/injury
there must be an actual loss or injury
education malpractice
(example of negligence cause of action)
a. definition of education malpractice lawsuit: parents/students have brought suits against districts/teachers based on alleged malpractice that deprived the students of learning or educational achievement
1. this lawsuit uses tort law to seek compensation when a student who has been through a program has failed to attain an achievement level
2. Example: awarded a diploma, but cannot read
Must due four prong test
1. Duty
2. Breach
3. Proximate cause
4. Actual loss or injury
Peter W. V San Francisco USD (1976)
Facts: Peter was passed from grade to grade and graduated from high school even though he was at a 5th grade reading level and the law at the time required that students pass a proficiency test certifying that he could function at or above the 8th grade
Issue: sued for educational malpractice by alleging that he was not provided with basic academic skills, he was not reading at an 8th grade level as required under the law, he was unable to gain meaningful employment as a result of district breach of duty to educated him
Analysis: use 4 prong negligence test
1. Duty-court held that it was unable to establish a duty of care by which to measure educator’s conduct
2. Breach- court held can’t establish duty then it can’t establish breach of that duty
3. Proximate Cause: court held lack of identifiable connection between the educator’s conduct and alleged injury
4. Actual Injury-court held lack of certainty that the student suffered harm under negligence
intentional tort
individual deliberately acts, resulting in harm regardless of intent (i.e. three intentional torts assault, battery, and defamation)
assault and battery
the most common intentional torts with which educators become involved during discipling
assault
non-physical act that puts another person in fear of immediate bodily harm
1. non-physcial: if physical touching then battery
2. Act: acts (swing and miss) words or both
3. ability to carry out: person believes that wrongdoer has ability to carry it out thus fear must be real
4. harm has to be immediate: not a week later
>>>to threaten to injure another person is an assault
battery
intentional and not permitted physical contact that causes bodily injury
1. physical contact: must involve touching
2. not permitted contact: social contact, not actionable
>>>>actually hitting another person is battery, which usually includes assault
defamation
intentional tort
Student supervision
districts are responsible and liable for student supervision when a student is attending school, at any school sponsored activity on or off campus or traveling to and from school using district transportation
1. classroom and corridors yes
2. athletics, physical education, and playgrounds yes
3. equipment and materials yes
4. lunch time yes-higher duty of care because so many kids
5. errands yes
6. field trips and other off-campus school activities-higher duty of care
>>>Districts have a duty of reasonable care/supervision in field trips, whether mandatory or voluntary, like as if they were in school, however, courts have held that the duty may be higher because greater risks outside school, however, courts have held that the duty may be higher because greater risk outside school
7. transportation
8. Before and after school: generally districts do not have a duty of care
parental consent or waivers of liability
districts attempt to limit their liability by requiring parents to sign waivers of liability: districts attempt to limit their liability by requiring parents to sign waivers, however, courts generally do not release the district from liability because
1. the forms do not say waiving negligence (i.e. gross, reckless, etc.) and courts are reluctant to waive it
2. the courts have stated that public policy demands that schools are safe and thus negligence cannot be waived
3. the parents cannot waive their child’s injury claim

districts attempt to limit their liability by requiring parents to sign waivers of liability: districts attempt to limit their liability by requiring parents to sign waivers, however, courts generally do not release the district from liability because
1. the forms do not say waiving negligence (i.e. gross, reckless, etc.) and courts are reluctant to waive it
2. the courts have stated that public policy demands that schools are safe and thus negligence cannot be waived
3. the parents cannot waive their child’s injury claim

Duty of Care according to EC
Rule: no district shall be responsible or anyway liable for the conduct or safety of any pupil at any time when such pupil is not on school property, however, there are exceptions
1. District provides transportation before and after school
2. Duty of supervision may extend to times before and after school for example with the principal’s “consent” in that he/she has notice of students utilizing school grounds during those times, however see Bartell v. Palos Verdes Peninsula School District (1978)
Bartell V. Palos Verdes Peninsula School District (1978)
Facts: 12 year old boy was fatally injured while playing a dangerous skate board game after school hours on school grounds
Issue: does the school district have a duty of care and to what degree?
Rule: court made two rulings 1. district has a duty of care to supervise students during all school hours,however, to require virtual round the clock supervision or prison-tight security for school premises would be too much of a financial burden 2. students engaging in dangerous behavior have to assume some risk for their behavior
Conclusion: district not held liable for an injury occurring after school hours
Caveat: the Bartell rule is a risking decision to follow
ASSUMPTION of RISK
Hoyem v. Manhattan Beach City School Districts (1978)
Facts: 10 year old boy leaves school in the middle of the day without parent or school permission and was hit by a motorcycle off campus
Issue: whether the district had a duty of care when the pupil is or should have been under the immediate and direct supervision of the district
Rule: yes district has duty of care
Conclusion: (court went through 4 prong test) district had a duty of care and is liable because of its negligent supervision, that is, if properly supervised pupil would not have been allowed to leave
Act like a reasonable person
the best protection/defense is to satisfy the duty of care which includes meeting the appropriate standard of care and proper supervision requirements
Governmental Immunity from Liability
public employees are covered for liability under immunity statutes
ex. California and Federal personal liability law
California personal liability law
examples include but are not limited to a Governmental Tort Claim-when someone want to sue they must file a tort claim (2 pages), must be filed within 6 months of the incident, statute of limitations, the government can pay it or reject it
Liability under Federal Law exist pursuant to 42 U.S.C. 1983
which provides liability if a person (i.e. administrator) operating under color of state violates another person’s civil rights
Wood v. Strickland (1975)
Facts: district expelled student who alleged civil rights violation under 42 U.S.C 1983 (alleged equal protection/due process violations under the 14th amendment)
Issue: addressed the issue of immunity from liability for school board members
Rule: QUALIFIED IMMUNITY-qualified good faith immunity (federal): case law and public policy provides that school officials are entitled to a qualified good faith immunity from liability vs. absolute immunity
Qualified but not absolute because school officials are not immune from liability if they knew or reasonably should have known that the action they took within their official official responsibility would violate the constitutional rights of the student affected, or if they took the action with the malicious intention to cause a deprivation of such rights or other injury to the student
Carey v. Piphus (1978)
Facts: district suspended student who alleged civil rights violation under 42 U.S.C. 1983 (alleged equal protection/due process violations under the 14th Amendment
Issue: are money damages available under the 42 U.S.C 1983
Rule: pursuant to a violation of 42 U.S.C. 1983 students are entitled to nominal money damages but not an award of large punitive damages where little or no actual harm occurred
Gebser v. Lago Vista Independent School District (1998)
Fact: Teacher sexually harasses student. At no time was district aware of the sexual harassment
Rule: District not liable for damages unless district knew and failed to respond to the sexual harassment
CAVEAT: generally a court will find the district/school knew….also teacher will be personally liable
Davis v Monroe county (1999)
In this landmark case student to student sexual harassment case. the court held that the district was liable because they had actual knowledge of the harassment (e.g. serious/severe) and they acted with ” DELIBERATE INDIFFERENCE” (i.e. did little or nothing)
Deliberate indifference
did little or nothing
contributory negligence
In defending a negligence lawsuit a district or district employee may be able to demonstrate that the injured student’s own conduct contributed to his/her injury, thereby completely dismissing the lawsuit or reducing liability in direct proportion to fault
>>>In determining contributory negligence courts will consider what a reasonable prudent student would have done (age and maturity of student)
comparative negligence
in defending a negligence lawsuit, a comparative negligence defense can be used if it can be shown that an injury was partly the fault of several persons, including but not limited to, plaintiff and defendant, thereby reducing liability in direct proportion to fault
assumption of risk
under this doctrine, an injured person is not allowed to recover damages if person sustained injuries after agreement or voluntarily participating and knowing the inherent dangers
a. rational: individuals must take responsibility of their acts if they understand and appreciate the dangers
Ex. any athletic activity (protects districts/coaches)
Vicarious Liability
generally California law requires school districts to assume liabilities for its officers and its employees
EC 825
requires a school district to provide defense and pay any judgement of settlement resulting from an employee’s action in the course and scope of employment/responsibility
a. school employees are protected from damages related to negligence and liability provided they are acting within the scope of employment/responsibilities
b. school employees may be named in the lawsuit, but the district is responsible to pay damages
Workers comp
if an employee is injured at work s/he is covered under workers’ compensation law
California teachers are covered by workers’ compensation insurance
Parent liability
parents are liable for the tortuous conduct of their children
under the EC a parent is liable for damages stemming from a minor’s willful misconduct resulting in injury
legal residence
the legal residence of the parent is the legal residence of the student in regard to school attendance
penal code-child abuse
school employees are required under law to report suspected child abuse
In California teacher are required by law to report known or suspected child abuse to a child protective agency immediately by telephone and to follow up with a written report within 36 hours
DCFS (Department of child and family services) or Local Law Enforcement
reasonable suspicion
means it is reasonable for a person based on the person’s training /education/experiences to entertain a suspicion of child abuse