Chapter Outlines:

(Blue text denotes legislation or court cases)

Chapter 6: School Personnel and School District Liability
I. The School as a Safe Place
A. Schools are presumed to be safe places
B. Educators have been assigned three legal duties by the courts under in loco
parentis
1. to instruct
2. to supervise
3. to provide safety for students
C. School personnel are expected to foresee that students may be injured under
certain circumstances.
D. Hosemann v. Oakland Unified School District
1. schools have affirmative duty to alleviate crime and violence at school
2. first ruling which court interpreted constitutional amendment that
grants students and staff and inalienable right to attend campuses
that are safe, secure, and crime free
II. Liability of School Personnel
A. School personnel are responsible for their own tortious acts at school.
B. School personnel liability falls into two categories
1. intentional torts - assault, battery, libel, slander, defamation, false
arrest, malicious prosecution, invasion of privacy - require proof of
intent or willingness
2. unintentional torts - do not require proof of intent or willingness
C. Individual Liability
1. In certain situations, school personnel may be held individually liable
for their actions that result in injury to a student.
D. Vicarious Liability
1. Districts may be held vicariously liable for the negligent behavior of
their employees.
2. Old theory of respondent superior
a) the master is only responsible for authorized acts of its
servants or agents
E. Foreseeability
1. defined as the ability of the teacher or administrator to predict or
anticipate that a certain activity or situation may prove harmful to
students
a) includes nuisances (unsafe conditions) like faulty playground
equipment, loose stair rails, etc.
2. Once an issue is found prudent steps must be taken right away to avoid
liability claims.
F. Nuisance
1. Attractive nuisance
a) dangerous item or condition that has special attraction to less
mature students.
2. Premises liability
a) owner or possessor of a building has a duty to make sure that it
is maintained and safe for guests.
(1) Invitees - someone invited on premises by owner (ex.
parents)
(a) should be protected from known hazards
(b) no absolute duty to ensure invitees are safe
(2) Licensees - person with privilege to enter the school
(a) duty to warn licensees of impending dangerous
conditions
(b) must be aware of licensees on property in order
to provide reasonable steps for protection
(3) Trespassers - one who enters school property without
consent.
(a) no obligation to protect trespassers.
(b) school officials cannot willfully or wantonly harm
trespassers or deliberately create condition to
harm them.
3. Reasonable action is required in cases involving nuisances
G. Parental Access to School Premise
1. parents have the right to be on school property
a) unless they pose a threat by a behavior, or courts order that
bars school visits
2. it is the schools responsibility to make the area safe for parents
3. there is an obligation for the schools to address unsafe conditions
prior to visits of parents
III. Intentional Torts
1. deliberate act to committed against another person-with or without
the intent to harm--a tort is committed
2. there are several types of intentional tort
B. Assault
1. an offer to use force in hostile manner
2. tort committed against someones mind-causing fear for their safety
C. Battery
1. occurs when un welcome or unprivileged physical contact is present
2. usually follows an assault
3. teachers and administration are liable for their own acts and if they
observe a student being assaulted of battered by others-they need to
take action
a) charges can be brought if teachers or administrators neglect
issues to this nature
4. Assault and Battery Involving Physical Fights
a) assault may be associated with physical fights when actions are
intended to cause bodily harm
b) assaults take form of threats to inflict bodily harm
c) injured student my file suit against school personnel as a result
of physical attack - if personal had prior knowledge the student
that caused harm was a threat to others
d) school officials also liable if two students mutually engage in a
fight
D. Defamation
a) when false statements are made about another person, that
harm ones name or reputation
b) to sustain charge third party must be involved
c) school personnel have qualified privilege-but must not make
false statements in regards to student or colleagues with
malice or intent to harm
2. Libel and Slander
a) slander is oral defamation
b) libel is written defamation
IV. Defenses Against Defamation
1. defenses against defamation
B. Privilege
1. courts understand importance of statements made by school personnel
in order to serve their duties
2. some freedom in statements as long info is act in good faith
3. if school personnel act in parameters they are supported by courts if
unreasonably with wrong motives no protection
C. Good Faith
1. essential is establishing qualified privilege
2. statements need to said under good faith and not out of spite or
malice
D. Truth
1. generally a defense against charges with defamation
2. educators need to make sure all statements made based on good faith
and truth
E. Mental Distress
1. Arises when one exhibits conduct that exceeds the acceptable
boundaries of decency
2. School personnel can be charged with inflicting mental distress when
using unorthodox teaching methods to
embarrass/harm/ridicule/humiliate students
a) Ex: Making students walk around with books on their head
3. Discipline of students needs to be reasonable and consistent with
school policy
4. Relatively new Tort
F. False Imprisonment
1. Occurs when a student is detained illegally by the teacher/principal
2. Considered an intentional tort
3. Teachers/principals may detain and prevent participation from
playground activities/recess/certain extracurricular activities/for
detention (parental awareness)
4. Can never be denied lunch breaks
G. Trespassing on Personal Property
1. Tort involving confiscating/interfering with the use of a students
personal property without proper authority
2. Does not usually warrant legal action
3. Teachers/administrators have a right to confiscate items but not keep
for an unreasonable amount of time
V. Unintentional Torts
1. Is a wrong perpetrated by someone who fails to exercise the proper
degree of care in doing what is otherwise permissible (acting
negligent)
2. Negligence-viewed as the failure to exercise a reasonable standard of
care that results in harm/injury
a) Requirements to prove negligence: standard of care, breach of
duty, proximity or legal cause, and injury
B. Standard of Care
1. Requires that school personnel exercise the same degree of care that
other professional educators holding similar positions would exercise
under the same conditions
2. Level of care due to students changes based on the age, maturity,
experience, and mental capacity of students as well as activities
involved
3. Expectation that educators exhibit behavior that meets the standard
that a reasonable, mature, and intelligent person would meet in the
same or similar situation
a) Educators need to exercise reasonable judgement in dealing
with students in order to protect them
C. Breach of Duty
1. based on whether the conduct of school personnel met the standard of
care required in a given situation
D. Proximate Cause
1. occurs when a causal relationship existed between the breach of duty
and the actual injury sustained by the student
2. there must be evidence that links the injury directly to failure of
educators to act prudently in a given situation
E. Injury
1. the person claiming injury must demonstrate that he/she received
injury and that some compensatory damages are related to the injury
VI. Defenses for Negligence
A. Contributory Negligence
1. if the evidence reveals that a person claiming injury exhibited conduct
that fell below a reasonable standard, liability charges against school
personnel may be abrogated
2. contributory negligence is probably the most common defense
employed in charges of negligence
B. Assumption of Risk
1. commonly used as a defense in situations involving various types of
contact-related activities
2. the student involved has knowledge and understanding of the potential
damage involved in participating
3. even though a student assumes an element of risk, it does not relieve
school personnel in cases where they fail to meet a reasonable
standard of care based on the age, maturity, risk, and nature of the
risk associated with the activity
4. example: an eight-year-old girl was seriously burned when her costume
caught fire from a lighted candle on her teachers desk
C. Comparative Negligence
1. if one party is found to have contributed more heavily to an injury
than another, then that party will be assessed a greater proportion
for damages
2. if the injury determines that both parties contributed equally to the
injury, then neither party is assessed damages
3. example: two students chased a fly ball during a softball game, causing
a collision in which both received injury
D. Immunity
1. The state or federal government is protected from suit and cannot be
held liable for injuries that resulted in the proper execution of
governmental functions.
2. Proprietary immunity - those activities in which admission fees are
charged
3. Ministerial (governmental) acts are those required by state mandate
or local school board policy and ones for which school personnel do
not exercise choice
a) Some states consider all school district activities to be
governmental, creating confusion and difficulty in addressing
immunity issues
4. Discretionary acts duties as to when school exercises judgment
5. Teachers and administrators may or may not be covered by this
concept
6. Some states do not have immunity because it is waived by school
boards who have acquired liability insurance.
E. Immunity Costs
1. Personnel are advised to affiliate with their state and national
educational associations because it carries liability protection.
VII. Proper instruction and student safety
A. Teachers have legal duty to train students on proper use of equipment and
materials for classroom activities. Standard of care is great for teachers in
these activities.
1. Physical Education
2. Intramural Sports
3. Science
4. Vocational
B. Must provide adequate instruction on how to use equipment
C. Norman Vs. Ogallala Public School District district did not comply with
policy set on safety precautions for students.
1. Improper clothing for welding, district failed to show proper
instruction on safety and clothing
2. A variety of cases demonstrating negligence toward adequate
instruction on
VIII. Duties of Supervision
A. All teachers and administrators are expected to provide reasonable
supervision of students under their charge
B. The degree of supervision will vary depending on their age and maturity level
C. Standard of care vary depending on each unique situation, adequate
supervision in one situation may be totally inadequate in another situation.
D. Courts will consider such factors of age, nature of activity involved and
number of students engaged in the activity
E. Before School
1. School personnel have the responsibility to provide supervision before
school
2. There is no guarantee that during that time it will be incident free,
but preventive measures need to be in place
3. Communication is the key for successful supervision of students
before school
F. Titus v Linberg student incident in which a paper clip was hurled at a
students eye, therefore causing damage. Courts found staff to be inadequate
with supervision because no one was present even though they knew students
arrived at school early.
G. During School
1. Students are viewed as agents of teachers and administrators
2. Accountable to them for their behavior and academic performance
H. After School
1. School personnel assume no duty to supervise students after the
school day has ended
a) Unless school sponsored transportation or school activity
2. Teachers and administrators do not have the right to ignore students
en route home when they observe dangerous situations
I. During Field Trips
1. These are extensions of the normal school day
2. Standard of Care will vary depending on the age and maturity of
students
3. District-owned or commercially-owned busses should be used when
transporting students during field trips
J. Parental Consent and Written Waivers
1. Permission forms do not abrogate the school personnels legal duty to
supervise and provide for the safety of students
IX. Liability Involving Civil Rights Statutes
1. Civil Rights Act of 1871, prohibits denial of constitutional and
statutory rights by public officials
B. Liability Insurance for Teachers and Administrators
1. Schools operate in a litigious society and therefore educators face
liability challenges by parents and students alike