Understanding & Managing Tort Liability

BY: MARY CAROLE YOUNG

Can We Be Sued For That?

Tort Defined

“TORT – A CIVIL WRONG FOR WHICH A REMEDY MAY BE OBTAINED, USUALLY IN THE FORM OF DAMAGES; A BREACH OF A DUTY THAT THE LAW IMPOSES ON EVERYONE IN THE SAME RELATION TO ONE ANOTHER AS THOSE INVOLVED IN A GIVEN TRANSACTION.”

-BLACK’S LAW DICTIONARY

Intentional Tort

Negligence

WORKERS’ COMPENSATION

Tort Immunity:

Who’s covered and in what situations

Tort Immunity Defined

A doctrine providing a complete defense to a tort action. Unlike privilege, immunity does not negate the tort, and it must be raised affirmatively or it will be waived.

-Black’s Law Dictionary

STATUTE GRANTING TORT IMMUNITY

Ark.Code Ann. § 21–9–301 (tort immunity) (a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, public charter schools, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.

What the Court says the statute says

This statute has been interpreted as providing qualified immunity for School Districts and its employees for negligent torts.

School Districts and its employees can be sued (for negligent torts) to the extent that there is an applicable insurance policy.

Helena-W. Helena Sch. Dist. v. Monday, 361 Ark. 82, 86, 204 S.W.3d 514, 517 (2005) (citing Carter v. Bush, 296 Ark. 261, 753 S.W.2d 534 (1988).

What the Court says the Statute says NO immunity from intentional torts: Battle v. Harris, 298 Ark. 241, 766

S.W.2d 431 (1989)

NO immunity for employees’ malicious acts: Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986)

What is NOT a negligent tort? BASICALLY, something you MEANT to do

Harassment Coach taunts student because of breast size

Coach taunts other coach because of breast size

Criminal act Coach punches player in arm

Coach pulls chair out from under player

Coach touches player on the bottom

Other Coach plays rough in basketball game with player

INSURANCE POLICY IS THE IMMUNITY EXCEPTION

Lawsuit against the school district and its employee, but the school district does not have an applicable insurance policy, so individual can still recover from the employee if the employee has insurance of his or her own that covers the type of act that was at the cause of the injury.

See Waire v. Joseph, 308 Ark. 528, 825 S.W.2d 594 (1992). See also Helena-W. Helena Sch. Dist. v. Monday, 361 Ark. 82, 86, 204 S.W.3d 514, 517 (2005) (stating that the immunity for negligent torts afforded to school districts and to school employees, however, is qualified, and an employee or a district can be sued to the extent that applicable coverage exists under a policy of insurance).

Automobile Insurance Ark. Code Ann. § 21-9-303 (West) (a) All political subdivisions shall carry liability insurance on their motor vehicles or shall become self-insurers, individually or collectively, for their vehicles, or both, in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, § 27-19-101 et seq. (b) The combined maximum liability of local government employees, volunteers, and the local government employer in any action involving the use of a motor vehicle within the scope of their employment shall be the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, § 27-19-101 et seq., unless the political subdivision has purchased insurance coverage or participates in a self-insurance pool providing for an amount of coverage in excess of the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, § 27-19-101 et seq., in which event the maximum liability of the insurer or pool shall be the limits of the coverage provided for in the policy or agreement. (c)(1) Any person who suffers injury or damage to person or property caused by a motor vehicle operated by an employee, agent, or volunteer of a local government covered by this section shall have a direct cause of action against the insurer if insured, or the governmental entity if uninsured, or the trustee or chief administrative officer of any self-insured or self-insurance pool.

APPLICATION- INSURANCE POLICY Kid gets injured in school bus accident

School insurance applies

Kid gets injured in teacher’s car

Teacher’s insurance applies

WHAT IF TEACHER HAS NOT ENOUGH INSURANCE?

“Tort immunity is applied to school employees for their liability for negligent acts arising out of their performance of their official duties.”

Weir v. the Searcy School District, 308 Ark. 528 (1992)

What this means: teacher drives student home from school, teacher injures kid in accident, teacher gets sued – teacher loses life savings

FYI – exception for EMPLOYEE VEHICLE

DISTRICT’S POLICY CAN COVER EMPLOYEE

It’s up to the policy.

In this case, the language of the policy allowed for another automobile not owned by the named insured to be covered as a substitute while the insured automobile was withdrawn from use. See S. Farm Bureau Cas. Ins. Co. v. Noggle, 246 Ark. 35, 41, 437 S.W.2d 215, 217-18 (1969).

TIME OUT FOR DAMAGES

Determining damages is an art

WORTH OF THE INJURY IS DETERMINED

ADULT

CHILD

DEATH

What about intentional torts? School district responsible for employee’s INTENTIONAL tort when:

1. be of the kind (of act) the employee is employed to perform;

2. occur substantially within the authorized time and space limits; and

3. be actuated, at least in part, by a purpose to serve the master.” See Daniels v. Lutz, 407 F. Supp. 2d 1038, 1051 (E.D. Ark. 2005) (citing Regions Bank & Trust, N.A., v. Stone County Skilled Nursing Facility, 73 Ark.App. 17, 21, 38 S.W.3d 916, 919 (Ark.App.2001)).

CORPORAL PUNISHMENT School district responsible for employee’s INTENTIONAL tort when:

1. be of the kind (of act) the employee is employed to perform;

2. occur substantially within the authorized time and space limits; and

3. be actuated, at least in part, by a purpose to serve the master.”

Principal paddles child at child’s home.

Principal paddles child at school for wrong done at home.

Principal burns child with cigarette for smoking at school.

Court’s rule on corporal punishment A teacher has the right to inflict reasonable corporal punishment upon a pupil for insubordination, disobedience, or other misconduct, but he has no right to inflict a punishment to enforce an unreasonable rule, and the punishment must not be inflicted with such force or in such manner as to cause it to be cruel or excessive.

Daniels v. Lutz, 407 F. Supp. 2d 1038 (2005)

WHAT TO DO?

Weed eater sends rock through teacher’s windshield

IMMUNE

Don’t pay the deductible

WHAT TO DO?

Child injured on playground

IMMUNE

Don’t pay the deductible

WHAT TO DO?

Child injured by other child

IMMUNE

Don’t pay the deductible

FYI: some districts get policies to cover these kinds of things – not legally recommended

LiabiLity of SchooL board MeMber

School Board Directors Immune from Suit § 6-19-103. Directors immune from suit

(a) It is declared that the directors of all school districts and special school districts in this state in the discharge of their duties as such directors act in a necessary governmental function.

(b) Therefore, no action for personal injuries or damage to property arising out of the acts, conduct, or omissions of such directors in their official capacities shall be brought or maintained in this state against directors personally.

(a) The immunity …shall not extend to acts or omissions of directors of nonprofit corporations or members of boards, commissions, agencies, authorities, or other governing bodies of any governmental entity which constitute ordinary or gross negligence personal to the director or member or to intentional torts committed by a director or member. Ark. Code Ann. § 16-120-103 (West)

APPLICATION of IMMUNITY– SCHOOL BOARD MEMBERS Fire a teacher

Official capacity

Immune

Set fire to a teacher

Unofficial capacity

Not immune

APPLICATION of IMMUNITY- SCHOOL BOARD MEMBERS

UNOFFICIAL CAPACITY—

Run over kid in school parking lot

Student slips and falls at your house

Punch a player in the arm at the football game

Facebook postings

Example NOT immune During the High School’s “spring break”, a 30,000 square feet of

ceiling tile, containing asbestos, was removed. For many years prior to the removal, the asbestos was agitated, causing loosening of the material and daily incidents of exposure. The school board members purposefully deceived the students and their parents, as to the condition of the asbestos, in order not to disrupt school routine. A group of plaintiffs consisting of parents of children who attended the High School filed suit against the school board members, alleging that knew or should have known of the presence of friable asbestos in the High School and failed and refused to correct the condition and to protect the students and staff from the dangers of exposure.

count alleged: the tort of outrage

SUMMARY OF WHAT WE KNOW

DISTRICT is immune from negligence

DISTRICT has to have auto insurance

DISTRICT can have insurance on anything it wants

NO immunity for criminal acts, harassment

NO immunity for intentional torts

DISTRICT can have insurance on these acts Insurance company must be willing to

write the insurance contract

Errors and Omissions Insurance

Sample E&O Policy

Sample E&O Policy

QUIZ

Immune or Not Immune that is the Question

Smiley Jr. was attending school and walking to the coach's office when he was struck in the left eye by a rock which was thrown by a riding lawn mower. Cody was operating the riding lawn mower at the time and was mowing grass on the school premises under the direction of the school maintenance supervisor, Bruce. Smiley Sr. filed suit, on behalf of his son and individually, against Cody, Bruce and the school district alleging, among other things, that the Cody, Bruce and the School District‘s negligence caused Smiley Jr's injury—him becoming blind in his left eye. See Cousins v. Dennis, 298 Ark. 310, 311-12, 767 S.W.2d 296, 296 (1989).

SUMMARY OF WHAT WE KNOW

DISTRICT is immune from negligence

DISTRICT has to have auto insurance

DISTRICT can have insurance on anything it wants

NO immunity for criminal acts, harassment

NO immunity for intentional torts

DISTRICT can have insurance on these acts Insurance company must be willing to

write the insurance contract

School Worker’s Defense Fund Ark. Code Ann. § 6-17-1113

(2) This section provides protection against civil liability, attorney's fees, and costs of defense for acts or omissions of each employee or volunteer in the performance of his or her duties as a volunteer or his or her official duties as a school employee, including civil liability for administering corporal punishment to students, in the amount of two hundred fifty thousand dollars ($250,000) for incidents which occurred prior to July 1, 1999, and one hundred fifty thousand dollars ($150,000) for each incident which occurs after June 30, 1999.

(b)(1) The program is further authorized to provide limited financial reimbursement not to exceed five thousand dollars ($5,000) for attorney's fees and costs for the defense of criminal charges if the covered person is exonerated by a court of law or if all charges are subsequently withdrawn or dismissed unless:

(A) Withdrawal or dismissal of the criminal charges is conditioned upon termination of employment or surrender of a professional license; or

(B) The covered person enters a plea of guilty or nolo contendere to the criminal charges.

(2) The School Worker Defense Program Advisory Board may authorize reimbursement under this subsection in excess of five thousand dollars ($5,000) in matters that the advisory board finds to require extraordinary attorney's fees and costs.

The Supreme Court of Arkansas interprets Ark.Code Ann. § 6–17–1113 to authorize and direct ADE to establish a self-insurance fund or procure insurance policies to insure school district employees against acts or omissions from which they have not traditionally been immune, i.e., civil rights claims under federal legislation and intentional or malicious acts or omissions. Waire v. Joseph, 308 Ark. 528, 534, 825 S.W.2d 594, 598 (1992)

Recent Jury Verdicts California Doe v. Roe School District, Confidential Dkt. No. (Riverside Cnty. Super. Ct. 2012) • Settlement: $3 million. • Harassment/Injuries: Sexual assault of special needs student. • Single plaintiff • Basic Facts: Students raped a 14-year-old special needs child over the course of several months near a bathroom located outside an enclosed area designed to keep the child safe at lunch. The child suffered severe emotional distress. • Cause of Action: State tort law for negligent security. INDIANA McCoy v. South Madison Community Schools (Madison Cnty. Cir. Ct. 2013) • Jury verdict: $50,000. • Harassment/Injuries: Verbal and written harassment. • Single plaintiff • Basic Facts: Classmates photoshopped sexually suggestive pictures of the plaintiff when she was a freshman in high school, and posted them on flyers in school hallways and bathrooms that included her phone number. • Causes of Action: State tort law claim for negligence

Recent Jury Verdicts Tennessee Phillips ex rel. Gentry v. Robertson County Board of Education, No. M2012-00401- COA-R3-CV, 2012 WL 3984637 (Tenn. Ct. App. Sept. 11, 2012) • Judgment: $300,000. • Harassment/Injuries: Physical assault on disabled student with Asperger’s syndrome. • Single plaintiff • Basic Facts: A classmate hit disabled student in the eye with a book while the teacher was out of the room. The injury required four surgeries and left the student legally blind in one eye. Plaintiff and his mother had reported prior incidents of bullying and teasing. • Cause of Action: State tort law claim for negligence Ohio Couch v. Wayne Local School District (United States District Court for the Southern District of Ohio, Western Division ) •Injunction and $20,000 • Basic Facts: In April 2011, a student wore a T-shirt with a rainbow Ichthys, or “sign of the fish,” and a slogan that says “Jesus Is Not a Homophobe” in observation of GLSEN's National Day of Silence. Principal tells the student to turn the shirt inside out on the first occasion. The next day the student wears the shirt and the Principal tells the student to take the shirt off or face suspension. Student complies. The next school year the student asks the Principal for permission to wear the shirt; the Principal restated that the student would be suspended if he wore the shirt. In January 2012, Lambda Legal sends a letter on behalf of the student to the Principal stating that he was violating the student’s First Amendment rights and legal precedent. On April 3, 2012, Lambda Legal files suit. May 21, 2012 , the District and Principal agree to have judgment entered against them in an order affirming student’s right to wear the shirt on any day he chooses, and awarding $20,000 for damages, costs, and attorney’s fees incurred.

The end.

MARY CAROLE YOUNG