Avoiding Tort Liability in Schools

Abstract

The purpose of this paper is to answer three questions. 1) What is a tort liability? 2) What supervision issues in a school exist? 3) What educational policy steps can be taken to avoid liability problems?

According to Valente and Valente (2001), a tort is a civil wrong arising out of a breach of duty that is imposed by law. A tort is not a criminal act, unless it is an intentional tort, meaning that someone purposefully harmed someone else. There are a number of areas where tort liability can affect a teacher: Corporeal Punishment, Premises Liability, Supervision Liability, Defamation, and Educational Malpractice. A teacher is liable in supervision of students to the extent to which they do not act as a reasonable person of ordinary prudence would act in like circumstances.

There are four factors in determining a tort claim. 1) Did the sued party have a duty of care under the law that would have prevented the injury suffered by the claimant? 2) If there was a duty of care, was the duty actually breached? 3) If a breach of duty occurred, was it the proximate (or direct) cause of the injury? 4) If so, is the sued party shielded from liability by a privilege or immunity conferred by law?

There are also a number of defenses for a tort claim. Only two will be examined in light of supervision liability. 1) Privileged conduct. School officials are not held liable for harm when the use of reasonable force in self-defense or to stop a school fight is necessary. 2) Victim fault. There are two forms of victim fault: assumption of risk and contributory negligence. These two defenses consider the age, maturity, knowledge and appreciation of the danger of the child involved in the incident. For instance, a kindergarten child that wandered into the street and was hit by a car was not found to be contributorily negligent (387 F.Supp. 895, D. D.C. 1975), yet a strong high school athlete who was injured while wrestling a coach was found to have assumed the risk of his actions (443 So. 2d 302, La. 1983). Each tort case is unique in its facts and must be considered carefully. For this reason the best defense against tort is creating school supervision policy, following those policies, and most importantly, using good common sense.

There are three areas of concern at the writer's school: classroom supervision, playground supervision, and single-student medical emergencies. Through observation and discussion with various teachers it has been determined that a lack of set policy and a lack of understanding of the risks and legal implications of proper supervision significantly raise the risk factor in a possible tort suit.

The courts are filled with suits against teachers that were negligent in their classroom supervision. Two areas of classroom supervision include 1) leaving the classroom for extended periods of time and 2) placing students in the hallway while grading other student’s papers or for discipline reasons.

There have been numerous negligence cases where students were injured while teachers “stepped out” of the classroom for a short or extended period of time. According to Valente and Valente, (2001) a temporary or short absence of the teacher from the classroom is not normally a basis for negligence (300 S.E.2d 21, N.C. 1983). However, if a teacher abandons their classroom for an extended amount of time or when there is foreseeable danger, such as children with known behavior problems or open chemicals if in a science lab, the absence may well constitute a negligence problem (471 So. 2d 560, Fla. App. 1985).

Placing students outside the classroom presents its own unique problems. Students at this point are out of sight of anyone, even other students who may report problematic activity. This allows the student to wander the halls, search other student’s lockers, attempt to exit the school grounds undetected, or freely exhibit any number of other deviant behaviors. For these reasons and the simple fact that there are too many unknown variables when a child is out of visual sight, placing a student outside the classroom unsupervised is never encouraged.

When considering the supervision of students in a school classroom setting, teachers should remember that they are being paid to provide for both the safety and education of that student. Leaving a child unattended for a lengthy period of time does not ensure the safety of students and can therefore be a breach of duty and contract.

The next area of negligence in supervision is on the playground. According to statistics from the U.S. Consumer Product Safety Commission (2001), approximately 205,860 preschool and elementary children receive emergency room care for injuries sustained on playgrounds each year. The report also notes that 53% of those injuries occur on climbing equipment. Although playground injuries cannot be eradicated, proper supervision can reduce the number of incidents and the risk of liability.

According to the National Program for Playground Safety Report Card (2004), supervision of the playground area falls under four different areas. 1) Adults are present when children are on equipment. 2) Children can be easily viewed on equipment. 3) Children can be viewed in crawl spaces. 4) Rules are posted regarding expected behavior.

Teachers that congregate together to talk and are not sufficiently spread throughout the playground areas do not meet a proper standard of supervision and can be held liable for negligence. Steps that administrators and principals can take to reduce the risk of injury on the playground are identifying supervisory locations for teachers to watch from and establishing rules and policies for play on the playground.

The last area of liability discussed in this paper is the teacher who does not react properly in the event of a single-student medical emergency, i.e., broken bones, respiratory problems, concussions, etc. (This is only part of what could be considered a Crisis Prevention Plan.) Negligence has been found of teachers who move severely injured students without proper training, teachers trained in first aid that administer it improperly, or allowing other students to move an injured student resulting in a more severe injury (326 P.2d 633, Cal. 1958). Teachers who fail to notify properly trained personnel in a timely fashion have also been found negligent. (715 So.2d 69, La App. 1998)

The area of concern in single-student medical emergencies is the lack of a written policy and provisions. The U.S. Department of Education supports a policy which includes Mitigation and Prevention, Preparedness, Response, and Recovery (2003).

Specifically, the policies and provisions should include evaluating injures properly as to their severity and access to first aid kits and trained personnel. The U.S. Department of Education report also notes that "one common mistake is to delay calling emergency responders." Erring on the side of caution is a good rule.

The first step in reducing the risk of tort and negligent liability is to create effective policies. The National Program for Playground Safety provides a guideline for creating supervision plans for playgrounds (2004). In general, this plan is a good outline for creating a supervisory plan that includes all supervisory duties of teachers. Two of these steps include 1) creating a committee with members representing various points of view and 2) research policy information, including ratio of children to adults, philosophy of supervision, conflict resolution, rules and discipline.

After creating an effective policy for supervision, teachers must be informed and educated about the policies. One method is to incorporate a discussion of school policies concerning tort liability, supervision and negligence into the in-service program. This way administrators and principals know for sure that their teachers are aware of the policies. This also allows teachers to ask any questions they may have concerning the policies.

Bringing in an attorney that specializes in tort is another effective step in educating teachers about the dangers of tort and the ways of avoiding tort suits.

The school should also place all the policies, classroom supervision, playground policies and rules, and emergency procedures into the teacher handbook. This allows the teacher to refer to and review the policies and procedures when needed. This is also another way the school can reinforce the importance of such policies and procedures.

The dangers of tort liability can come primarily in the form of monetary compensation, but may include prison or jail time dependent on the kind of negligence. In the case of a church-school, the assets of teachers, administrators, the school and the church are up for grabs if the case finds for the plaintiff. By implementing the policies and procedures, a school can reduce the risk of a tort suit against the school or its teachers. But, by failing to institute and enforce appropriate policy the school opens itself up to risk of its assets.

Conclusion

Tort liability is a very serious issue for teachers and schools. According to an edweek.org article, the number of teachers purchasing liability insurance increased 25% from 1995-2000 (2000). The indication being that liability litigation is growing. However, steps can be taken to reduce the risk of such litigation. Proper policies and procedures and educating teachers by school administrators and principals is key.

Ballard v. Polly, 387 F. Supp 895 (D. D.C. 1975). (Kindergartner not found constributorily negligent)

Collins v. School Board, 471 So. 2d 560 (Fla. App. 1985). (Sexual assault during absence found to be negligent)

Declouet v. Orleans Parish School Board, 715 So. 2d 69 (La. App. 1998). (Teacher found liable for not calling ambulance in a timely manner)

James for James v. Charlotte-Mecklenburg Board of Education, 300 S.E.2d 21 (N.C. 1983). (Short absences from class not considered negligent)

Kluka v. Livingston Parish School Board, 433 So. 2d 302 (La. 1983). (High school athlete found to have assumed the risk of wrestling with his coach)

National Program for Playground Safety. (2004). America's Playgrounds Safety Report Card. www.playgroudnsafety.org.

Portner, J. (2000, March). Fearful Teachers Buy Liability Insurance. Edweek.org. www.edweek.org/ew/articles/2000/03/29/29insure.h19.html.

Tinsworth, D. & McDonald, J. (2001). Special Study: Injuries and Deaths Associated with Children's Playground Equipment. Washington, D.C.: U.S. Consumer Product Safety Commission.

U.S. Congress, Office of Technology Assessment. (1995). Risks to Students in Schools. www.playgroundsafety.org

U.S. Department of Education. (2003). Practical Information on Crisis Planning: A Guide for Schools and Communities. The Office of Safe and Drug-Free Schools.

Valente, W. D. & Valente, C. M. (2001). Law in the Schools. Upper Saddle River, New Jersey: Merrill Prentice Hall

Welch v. Dunsmuir Joint Union High School Dist., 326 P2d 633 (Cal. 1958). (moving an injured student found negligent)