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Risk Management:Creating a Safe Environment
What is Risk Management?
Risk management is a coordinated, effective, pre-response Risk management is a coordinated, effective, pre-response and post-response to a school’s district’s liability and post-response to a school’s district’s liability exposures developed through planning, organizing, exposures developed through planning, organizing, directing, and monitoring a district’s activities and assetsdirecting, and monitoring a district’s activities and assets
Risk management is the process of minimizing accidental Risk management is the process of minimizing accidental loss by anticipating and preventing the occurrence of loss by anticipating and preventing the occurrence of unplanned eventsunplanned events
Ingredients for risk management: Authority, Ingredients for risk management: Authority, Accountability, Responsibility, and Training (AART)Accountability, Responsibility, and Training (AART)
Principles of in loco parentisPrinciples of in loco parentis
Definite responsibility to the school for the welfare of each Definite responsibility to the school for the welfare of each student it serves in the absence of the student’s parent or student it serves in the absence of the student’s parent or guardianguardian
Components of Risk Management
Risk identificationRisk identification Risk assessmentRisk assessment Risk ControlRisk Control
Why do we need risk management in schools?
It is not managerially possible for schools to completely It is not managerially possible for schools to completely eliminate risks nor fiscally prudent to insure potential riskeliminate risks nor fiscally prudent to insure potential risk
Schools cannot avoid accountability for its actions or Schools cannot avoid accountability for its actions or inactionsinactions
A well-planned, active program of risk anticipation and A well-planned, active program of risk anticipation and prevention is more preferable (a pro-active approach)prevention is more preferable (a pro-active approach)
What does it include?
Student and staff safetyStudent and staff safety HealthHealth
Child abuse/abduction, drug testing, drug testing and Child abuse/abduction, drug testing, drug testing and student athletes, drug testing and employees, student athletes, drug testing and employees, students/employees with Aidsstudents/employees with Aids
Chemical safetyChemical safety Environmental affairsEnvironmental affairs Property protectionProperty protection Contingency planningContingency planning SecuritySecurity
TransportationTransportation Third party liabilityThird party liability Contractual liabilityContractual liability
Implications for Risk Management
Accidents, incidents, or transgressions are organizational Accidents, incidents, or transgressions are organizational managerial problems, not people problems. They are often managerial problems, not people problems. They are often dealt with ex post facto rather than through active program dealt with ex post facto rather than through active program of risk anticipation and preventionof risk anticipation and prevention
Insurance should be thought of only as financial protection Insurance should be thought of only as financial protection for unexpected failure in risk management programs, not for unexpected failure in risk management programs, not as the sole remedy for all accidental lossas the sole remedy for all accidental loss
Risk factors diminish with the expansion of the practice of Risk factors diminish with the expansion of the practice of prevention law:prevention law:
The lower the knowledge of legal procedures and the The lower the knowledge of legal procedures and the practice of judgment and foreseeability is, the higher the practice of judgment and foreseeability is, the higher the incidence of liability, environmental, and personnel lossincidence of liability, environmental, and personnel loss
Effective risk management requires effective leadershipEffective risk management requires effective leadership
Due Process
There are two kinds of due process:There are two kinds of due process:
Procedural due processProcedural due process
Substantive due processSubstantive due process Procedural due processProcedural due process
It entails fair warning and fair hearingIt entails fair warning and fair hearing
Fair warning: A person must be aware of the rules to Fair warning: A person must be aware of the rules to follow, or behavior that must be exhibited, and the follow, or behavior that must be exhibited, and the potential penalties for violationpotential penalties for violation
Fair hearingFair hearing
The individual must be given written statement of the The individual must be given written statement of the charges and the nature of the evidencecharges and the nature of the evidence
The individual must be informed of certain procedural The individual must be informed of certain procedural rights rights
Adequate time must be provided to prepare a defenceAdequate time must be provided to prepare a defence
There must be an opportunity for a formal hearingThere must be an opportunity for a formal hearing
Substantive due processSubstantive due process It is concerned with the basic legality of a legislative It is concerned with the basic legality of a legislative
enactmentenactment Guideline to ensure substantive due process:Guideline to ensure substantive due process:
LegalityLegality
Sufficient specificitySufficient specificity
Reason and sensiblenessReason and sensibleness
Adequate disseminationAdequate dissemination
Appropriate penalitiesAppropriate penalities
Tort
Tort is an actionable wrong, exclusive of a breach of contract, that the Tort is an actionable wrong, exclusive of a breach of contract, that the law will recognize and set right. A tort is a legal wrong against the law will recognize and set right. A tort is a legal wrong against the person, property, or reputation of anotherperson, property, or reputation of another
Classification of tort:Classification of tort:
The direct invasion of some legal right of the individual (e.g. invasion The direct invasion of some legal right of the individual (e.g. invasion of privacy)of privacy)
The infraction of some public duty by which special damage accrues The infraction of some public duty by which special damage accrues to the individual (e,g, denial of constitutional right)to the individual (e,g, denial of constitutional right)
The violation of some private obligation by which damage accrues to The violation of some private obligation by which damage accrues to the individual (e.g. negligence)the individual (e.g. negligence)
Negligence is the primary basis of tort liability suits filed against Negligence is the primary basis of tort liability suits filed against school districtsschool districts
Reasonable/Prudent Person
Negligence is doing something that a reasonably prudent Negligence is doing something that a reasonably prudent person would not have done, or failing to do something person would not have done, or failing to do something that a reasonably prudent person would have done when that a reasonably prudent person would have done when confronted by like or similar circumstancesconfronted by like or similar circumstances
Reasonable/prudent person Reasonable/prudent person The defendant is not identified with an ordinary individual The defendant is not identified with an ordinary individual
who might occasionally do unreasonable things, instead, who might occasionally do unreasonable things, instead, he/she is identified as a prudent and careful person who is he/she is identified as a prudent and careful person who is always up to the standardalways up to the standard
Duty and Standard of Care
Duty is an obligation that derives from the special Duty is an obligation that derives from the special relationship between parties such as that between relationship between parties such as that between an employee and a student, the an employee and a student, the district/government and an employee, or the district/government and an employee, or the district and a patron.district and a patron.
Standard of care is relative to the need and the Standard of care is relative to the need and the occasion, what is proper under one circumstance occasion, what is proper under one circumstance may be negligent under another.may be negligent under another.
The standard of care imposed upon school The standard of care imposed upon school personnel in carrying out this duty to supervise is personnel in carrying out this duty to supervise is identical to that required in the performance of identical to that required in the performance of their other duties. This uniform standard to which their other duties. This uniform standard to which they are held is the degree of care which a person they are held is the degree of care which a person of ordinary prudence, charged with comparable of ordinary prudence, charged with comparable duties, would exercise under the same duties, would exercise under the same circumstances. (California Supreme Court)circumstances. (California Supreme Court)
Foreseeability
If a school administrator/teacher could have, or should If a school administrator/teacher could have, or should have, foreseen or anticipated an accident, the failure to do have, foreseen or anticipated an accident, the failure to do so may be ruled negligent.so may be ruled negligent.
The concept of foreseeability expects school employee to The concept of foreseeability expects school employee to perform as a reasonably prudent person of similar training perform as a reasonably prudent person of similar training and circumstances could perform.and circumstances could perform.
If the ordinary exercise of prudence and foresight could If the ordinary exercise of prudence and foresight could have prevented an accident, the courts have ruled schools have prevented an accident, the courts have ruled schools to be negligent when they have not avoided a foreseeable to be negligent when they have not avoided a foreseeable danger to students or adults.danger to students or adults.
Types of negligence
Nonfeasance: Failing to act when there is a duty to actNonfeasance: Failing to act when there is a duty to act Misfeasance: Acting, but in an improper mannerMisfeasance: Acting, but in an improper manner Malfeasance: Acting, but guided by a bad motiveMalfeasance: Acting, but guided by a bad motive Prerequisites for a negligence action:Prerequisites for a negligence action:
The defendant must have duty to plaintiffThe defendant must have duty to plaintiff
The defendant must have failed to exercise a reasonable standard of The defendant must have failed to exercise a reasonable standard of care in his/her actionscare in his/her actions
The defendant’s actions must be the proximate cause of the injury to The defendant’s actions must be the proximate cause of the injury to the plaintiffthe plaintiff
The plaintiff must prove that he/she suffered an actual injuryThe plaintiff must prove that he/she suffered an actual injury
Common conditions resultingin tort reliability for negligence
Failure to provide adequate supervision (foreseeability + proximate Failure to provide adequate supervision (foreseeability + proximate cause (refer to case 1), general and specific supervision (refer to case cause (refer to case 1), general and specific supervision (refer to case 2)2)
Foreseeability: If the school district could have, should have, foreseen Foreseeability: If the school district could have, should have, foreseen or anticipated an accident, the failure to do so may be rule negligentor anticipated an accident, the failure to do so may be rule negligent
Failure to aid the injured/sickFailure to aid the injured/sick Creation of further damage through misguided effortsCreation of further damage through misguided efforts Permitting students to play unsafe gamesPermitting students to play unsafe games Permitting use of defective equipmentPermitting use of defective equipment Maintaining attractive nuisances (unprotected, unguarded, unsafe Maintaining attractive nuisances (unprotected, unguarded, unsafe
condition that attract a child to play – refer to case 3)condition that attract a child to play – refer to case 3) Failure to provide adequate instructionFailure to provide adequate instruction Failure to give adequate warningFailure to give adequate warning
Entrusting dangerous devices to students incompetent to Entrusting dangerous devices to students incompetent to use themuse them
Taking unreasonable risksTaking unreasonable risks Improper organized field tripsImproper organized field trips
Cases
Case 1Case 1 A student was hit by a bat swung by another student. The A student was hit by a bat swung by another student. The
teacher then was standing 30 feet away, passing milk, at teacher then was standing 30 feet away, passing milk, at the time of accident. Was the teacher liable?the time of accident. Was the teacher liable?
Case 2Case 2A six year old student was injured at a construction site A six year old student was injured at a construction site next to an elementary school where remodeling was being next to an elementary school where remodeling was being done. School officials knew of the potential dangers at the done. School officials knew of the potential dangers at the site and reminded students daily to stay away from the site and reminded students daily to stay away from the area. No other precautions to protect students were taken. area. No other precautions to protect students were taken. Was the school liable?Was the school liable?
Case 3Case 3 A young girl, who sustained an injury while watching a A young girl, who sustained an injury while watching a
baseball game. While playing around an abandoned long-baseball game. While playing around an abandoned long-jump pit, she was frightened by a dog. She fell backward jump pit, she was frightened by a dog. She fell backward and cut her hand on a piece of broken glass in the pit that and cut her hand on a piece of broken glass in the pit that had been covered by sand. The girl presented evidence had been covered by sand. The girl presented evidence that the school knew of the dangerous condition as the that the school knew of the dangerous condition as the school’s janitor and school authorities had received written school’s janitor and school authorities had received written notification of the condition of the pit. Was the school notification of the condition of the pit. Was the school liable?liable?
Case 5Case 5 Cliff Brown, a fifth-grade teacher, was standing at the Cliff Brown, a fifth-grade teacher, was standing at the
front of his class when there was a knock at the door. He front of his class when there was a knock at the door. He opened the door to find a person he vaguely recognized. opened the door to find a person he vaguely recognized. She said her name was Mrs. Parson and she needed to take She said her name was Mrs. Parson and she needed to take her son Brian to the dentist. Brian got his books, left, and her son Brian to the dentist. Brian got his books, left, and was never seen again.was never seen again.
Safety issuesSafety issues Releasing a child to an adultReleasing a child to an adult School personnel should be very cautious about the physical custody School personnel should be very cautious about the physical custody
of childrenof children Who has the parental right?Who has the parental right? The legal parent is that person whom the legal system recognizes as The legal parent is that person whom the legal system recognizes as
having the legal rights of parenthoodhaving the legal rights of parenthood How about child born to biological parents who are not married?How about child born to biological parents who are not married? In the case of divorce, it depends on whether the court grants In the case of divorce, it depends on whether the court grants
sole/jount custodysole/jount custody
Case 6Case 6 A high school band member, drowned in a hotel pool A high school band member, drowned in a hotel pool
while on a trip with the band. The student dove in the pool while on a trip with the band. The student dove in the pool and minutes later was found at the bottom of the pool. and minutes later was found at the bottom of the pool. Two chaperons assigned to supervise the pool activity Two chaperons assigned to supervise the pool activity immediately provided mouth-to-mouth resuscitation and immediately provided mouth-to-mouth resuscitation and continued to do so until the ambulance arrived. The continued to do so until the ambulance arrived. The parents of the student claimed the school was negligent in parents of the student claimed the school was negligent in failing to provide adequate supervision for their son, who failing to provide adequate supervision for their son, who did not know how to swim.did not know how to swim.
Case 4Case 4 A student fell into a ditch while attempting to catch a pass A student fell into a ditch while attempting to catch a pass
in a game of football played during the school’s lunch in a game of football played during the school’s lunch period. The principal was aware of the ditch on the period. The principal was aware of the ditch on the school’s property but had made minimal attempts to warn school’s property but had made minimal attempts to warn students and no attempt was made to fill the pitchstudents and no attempt was made to fill the pitch
Types of negligence
OmissionOmission
Harm occurs due to the lack of care the law expects of a Harm occurs due to the lack of care the law expects of a reasonable individual (e.g. nonfeasance)reasonable individual (e.g. nonfeasance)
CommissionCommission
Taking an improper action when there is a duty to acatTaking an improper action when there is a duty to acat Misfeasance may be either an act of commission or an act Misfeasance may be either an act of commission or an act
of omissionof omission
Waiver of liability (permission slips)
It is not true under the law that a waiver of liability truly It is not true under the law that a waiver of liability truly protects the school or the teacher from court actionprotects the school or the teacher from court action
Schools cannot be absolve of their obligation toward Schools cannot be absolve of their obligation toward students by a parental waiver or releasestudents by a parental waiver or release
Student Discipline
Due process: Procedural and substantive due processDue process: Procedural and substantive due process Corporal punishment is physical punishment applied to Corporal punishment is physical punishment applied to
modify behaviormodify behavior The use of corporal punishment is based on the concept of The use of corporal punishment is based on the concept of
in loco parentisin loco parentis Corporal punishment must be differentiated from assault Corporal punishment must be differentiated from assault
and batteryand battery Assault is the intentional thereat of harmful or offensive Assault is the intentional thereat of harmful or offensive
contact. The words must be accompanied by some overt contact. The words must be accompanied by some overt act, no matter how slight, that adds to the threatening act, no matter how slight, that adds to the threatening character of the wordscharacter of the words
Battery is the actual intentional infliction of harmful or Battery is the actual intentional infliction of harmful or offensive bodily contact. It is the intent to make contact offensive bodily contact. It is the intent to make contact and not intent to make injury.and not intent to make injury.
For example, a teacher has intended only to threaten a For example, a teacher has intended only to threaten a student by grabbing the student’s arm and accidentally student by grabbing the student’s arm and accidentally injures the studentinjures the student
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