ED 575 Chapter 13

1. ED 575Chapter 13 Tort Liability

2. What is Tort Law? Civil rather than criminal remedies to individuals for harm caused by the unreasonable conduct of others. A tort is described as a civil wrong, for which a court will provide relief in the form of damages.

3. Key Concepts 1. Negligence 2. Intentional Torts 3. Defamation Damages*

4. Negligence Breach of one’s legal duty to protect others from unreasonable risks of harm. To establish negligence an injury must be avoidable by the exercise of reasonable care. To support a successful claim: • Duty to protect the plaintiff • Duty is breached – failure to exercise standard of care • Conduct is proximate or legal cause • Injury occurs

5. Duty Supervision – provide adequate supervision Instruction – give proper instruction Maintenance - of equipment, facilities & Grounds Duty to Warn – of known dangers

6. Supervision In assessing if adequate supervision has been provided, courts will determine whether the events leading up to the injury foreseeably placed the student at risk and whether the injury could have been prevented.

7. Things to remember Not expected to have every child under surveillance at all times during the day. Can’t anticipate every possible accident No set level of supervision required under common law (no set student/teacher ratio)

8. Assessing Supervision Events leading up to the injury… where they foreseeable? Could the injury have been prevented? Leaving students alone to use the rest room or to make copies? Leaving students with a history of violence alone? Leaving students with severe disabilities alone in an aquatics class?

9. Orbit of School Authority Supervision of students to and from school. Placement of an unrealistic demand on school resources and un unfair burden on personnel. • Foreseeable • The district had an implied duty to provide supervision • The child was injured due to a breach of that duty

10. Things to Remember Inform parents about the earliest time supervision will be provided before school. Appropriate level of surveillance of the school building needs to be provided. Don’t use extreme measures to keep students at school.

11. Instruction Duty to provide adequate instruction prior to commencing an activity that may pose a risk of harm. Following such instruction, effort should be made to determine whether the material was heard and understood. (accomplished through assessment)

12. Facilities Districts can be held liable when they are aware of, or should be aware of, hazardous conditions and do not take the necessary steps to repair or correct the conditions. Does not place an obligation on school personnel to anticipate every possible danger or to be aware of and correct every minor defect as soon as the condition occurs.

13. Equipment School personnel are required to maintain equipment and to use it safely. • Woodshop • Science labs • Athletics • Transportation

14. Duty Warn Duty to warn students, parents, and at times educators and staff of known risks they may encounter. Informing, if not warning, those involved of known dangers is necessary so that they then may appreciate the risk and be in a better position to decide whether to assume it.

15. Things to Remember When you learn a student intends to harm themselves or others… notify parents. This requirement supersedes claims of professional ethics, discretion, client privilege, or confidentiality.

16. Breach of “Standard of Care” • Age, experience, maturity of the student • Environment within which the incident occurs • Type of instructional or recreational activity Reasonable Person Invitee, Licensee, and Trespasser

17. Reasonable Person The physical attributes of the defendant Normal intelligence, problem-solving, and temperament Normal perception and experience common to the community Such superior skill and knowledge as the defendant has or purports to have

18. Invitee, Licensee, and Trespasser Invitee – (expressed or implied invitation) students, teachers, and administrators Licensee – (requested and permitted) Parents, visitors, salespersons, newspersons Trespasser – (neither invited nor received consent)

19. Proximate Cause That which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without the result would not have occurred. Courts consider factors other than the defendant’s conduct created a force that was in operation upon the time of the injury.

20. Injury Legal negligence does not exist unless actual injury is incurred either directly by the individual or by the individual’s property. When students are injured I the school setting, school personnel have a duty to provide reasonable assistance commensurate with their training and experience.

21. Defense Against Negligence Contributory Negligence Only the injured party bears financial responsibility if ultimately found responsible for the act leading to an injury Comparative Negligence The Plantiff and/or one or more defendants bear responsibility in proportion to fault Assumption of Risk Express – consents in advance (signed release) or Implied – without express written consent (Baseball game)

22. Intentional Torts Assault and Battery – Assault: an overt attempt to place another in fear of bodily harm; no actual physical contact need take place. Battery: is committed when an assault is consumated. The act must be intentional

23. Self Defense An individual need not wait to be struck to engage in defensive acts, although reasonable grounds must exist to substantiate that harm is imminent. Even when contact is justified, the defendant must use only force that is reasonably necessary for self-protection. Responsibility to act in the defense of others… Not only is this permitted but it is also considered to be a responsibility or duty of educators. Using resonsable and necessary force.

24. Intentional Torts False Imprisonment – When physical action, verbal command, or intimidation is used to restrain or detain persons against their will. Restraints: educators need to document the requirement and a narrative explaining why the restraint was a reasoned response to the behavior

25. Intentional Infliction of Mental Distress – Severe mental anguish. This does not provide remedy for every trivial indignity, insult, bad manners, annoyance, or sexist or racist comment, even if disturbing to the plantiff. It must be flagrant, extreme, or outrageous; it must go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in civilized society. (prolonged and recurring)

26. Defamationinjuries to their reputation Slander – spoken defamation Libel – written defamation (pictures, movies, etc.) Private Persons – false publication was received and understood Public Persons – (public figures or officials) must show the publication was made with either malice or a reckless disregard for the truth

27. Damages Compensatory or Punitive and may include attorneys’ fees. 1/3 before trial and 40 percent if the case is tried