Chapter 10

Case StudyRussellville Middle School Principal Paige

Littleton was aware of the feud between Buffy McGuire and Kathy Harris.

Buffy’s mom complained numerous times about the mistreatment of Buffy and Kathy’s bullying.

One teacher said, “did their best to make life miserable for Buffy.”

Paige spoke with both girls, referred them to counseling, and made an effort to keep the peace.

However, Buffy and Kathy have a fight, Kathy uses a 5in pocketknife, and Buffy is seriously injured.

Case Study Buffy is hospitalized for her injuries and

“trauma.”Principal Littleton learns later that day that

Buffy’s parents retained legal counsel.

Is it conceivable that Buffy and her parents could sue Kathy and her parents?

Can Buffy sue the school district?Do schools and districts have any liability for

injuries suffered by one student at the hands of another?

Leadership PerspectivesISLLC Standard Tort Liability Standard 3C, calls for

school leaders who promote and protect the welfare and safety of students and staff.

It is simply impossible to protect students and teachers from all potential harm.

Tort liability is one way society ensures that local schools boards affirmatively meet their responsibility to provide policy designed to promote security within the school community.

The Law Of TortsA tort is a civil wrong that results in personal

injury or property damage, the compensation for which serves around social policy.

As common law, tort law is generally court-made law, rather than made (statutory) law. Schools, school systems, individual teachers, and individual administrators could all be either plaintiffs or defendants in tort cases.

NegligenceNegligence is the most common of the tort.Negligence-conduct that falls below the standards

of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.

There are five elements to the tort of negligence: 1. existence of duty, 2. breach of duty, 3. cause-in-fact causation, 4. proximate causation, and 5. damages.

DutyThe most common are the duties not to engage

in behaviors that would cause bodily harm to others or damage to the economic interests (property) of others.

Educators and educational systems stand in loco parentis Latin for “in place of the parent” to the unemancipated minors in their charge.

Educators have an affirmative duty to take reasonable steps to protect children in their charge while at school or at school-sponsored events regardless of location.

BreachWhen someone or some property is damaged,

it is not always someone else’s (or even anyone’s) fault.

A teacher/administrator very likely has a duty to provide aid to a student who is in danger of being injured.

A failure to exercise the affirmative duty of care that a reasonably prudent teacher, counselor, or principal in the same situation would exercise.

Cause-in-Fact CausationSometimes called the “but for” causation.The injured person would not have suffered the

injury but for the breach. The breach must have been in the chain of events that led directly to the injury.

A breach that occurs after the injury is complete can never be a cause-in-fact of an injury.

Remember the logical fallacy post hoc, ergo propter hoc. Simply because A precedes B, A is not necessarily a cause of B.

Proximate CausationProximate causation has been reduced to a

single idea-foreseeability. It asks whether a reasonable person, teacher,

or principal would have foreseen the injury.One can argue that injuries are easily

forseeable when schools fail to fulfill their duty to maintain a safe environment.

One can also argue that holding school districts responsible for the malicious actions of students is not sound social policy.

DamagesDamages are the physical or property

damages complained of. The goal in calculating damages is to

compensate victims for their losses. Damages associated with physical injuries tend to be things such as medical bills, pain and suffering, and lost wages. When the physical injuries are especially serious, damages can increase very rapidly.

Defenses to NegligenceContributory

negligence is an absolute defense.

If the defense is 99% responsible for the injury and the plaintiff is only 1% responsible, the plaintiff still takes nothing.

Comparative negligence seeks to proportion financial responsibility based on the percentage of the damages attributable to each party’s negligence.

Assumption of RiskSchools and educators frequently seek to

obtain express assumptions of risk from both parents prior to potentially dangerous activities such as, athletic competitions, travel by motor vehicle, activities off the premises of the school, and other situations that could potentially pose a risk beyond what would be expected in an educational setting.

They seek the express assumption through liability waivers, hold harmless, consent indemnity

Sovereign ImmunityWe- “the people” are sovereign. The people of

the United States collectively are sovereign. Sovereigns are immune to lawsuits in their own courts.

Sovereign immunity is a relevant defense for schools: Most schools are in some way a part of state government, and each state is sovereign.

It protects school systems (districts, boards of education, county school boards, etc) and individual schools from tort liability.

Sovereign ImmunityIt does not protect individuals (teachers,

principals, and superintendents are not sovereigns).

Even if a school is negligent, it can generally be said that the school is not responsible for compensating the victims of its negligence.

Schools and school districts will be less likely protected by the doctrine of sovereign immunity in “premises liability.”

Land owners have a duty to property maintain their premises, a duty to warn visitors of potentially dangerous situations.

Statutory ImmunityA policy decision made

by the legislatures of many states.

Educators are shielded from liability when acting within the scope of their duties, exercising judgment or discretion, not using excessive force to discipline a student, or operating a motor vehicle.

The Paul D. Coverdell Teacher Protection Act of 2001 (incl. NCLB ed. bill)

states that if teachers and principals follow school rules and act within the scope of employment responsibility, they will not be subject to liability.

Intentional TortsBattery AssaultIntentional act that

causes harmful or offensive bodily contact (Etheridge v. District of Columbia, 1993.)

Two parts: (1) the batterer must commit the act intentionally and (2) the batterer must either actually touch the victim’s person or cause someone or something else to touch the victim’s person

An attempted battery or threat of a battery.

Attempted battery when one tries to make harmful or bodily contact, but fails to do so.

Threat of battery, one threatens to make harmful or offensive bodily contact and puts the victim in imminent danger apprehension of the contact.

Intentional TortsFalse Imprisonment

Intentional Infliction of Emotional Distress

False imprisonment is a situation where one person intentionally confines another in a fixed space for an unreasonable period of time without legal justification.

Loco parentis- the educator is legally justified in confining the child in reasonable spaces for reasonable periods of time.

This tort is reserved for situations in which a defendant has behaved so maliciously that the “extreme outrageousness” of the conduct leads us to believe that the defendant intended nothing other than intentionally interfering with one’s peace of mind.

Managing the Risk of Tort Liability Insurance- is part of the district management

plan. It is purchased at the district level. Transportation is purchased through the district as well.

Strategic supervision plans are designed to improve consistent and effective supervision of students, especially in areas of the school where the potential for injury is increased.

Facility Inspection and Management, the principal should plan and supervise major infrastructure updates, should walk through facilities daily, and personally coordinate the master facility plan.

Court CasesGathwright v. Lincoln Insurance Co., 1985Dadich v. Syosset High School, 2000Kennedy v. Seaford, 1998

SummaryTort law is not a fun topic, nobody likes

talking about getting sued. A single serious avoidable injury on a campus

has the potential of ending a principal’s career.

Managing the risk of negligence is hard, intellectually taxing work.

A principal can create a “culture of safety” on her campus will go a long way toward becoming a successful long-term principal.