Scared or Prepared
Lockdown on Liability
Presentation Completed by
•David Lamar
•Michelle Ledbetter
•Melanie Lewis
Legal Entanglement Project for Education 545
Project Agenda or Outline
1. Introduction
2. Objectives
3. Definitions
4. Elements of Negligence
5. What do we have to fear?
Agenda continued
6. What is our responsibility?
7. Supreme Court Decisions
8. Future Legal Concerns
9. Threat Assessments
10. Take a Positive Approach
INTRODUCTION

More than ever before, today's schools are
serving children from dysfunctional homes,
children living in poverty, children of teenage
parents, special education students and
children of illegal immigrants. Unfortunately,
resources to adequately serve the total range of
needs presented by each of these increasing
populations has becoming increasingly limited.
Adequate parental supervision and control of
these students has weakened, and many
students have diminished respect for all forms
of authority, including the authority of
school
personnel.
INTRODUCTION cont.

As a result, schools are confronted with
problems of students possessing weapons,
students involved with gang recruitment and
rivalry, and students engaged in drug
trafficking, both as sellers and buyers. Such
problems lead to violent acts in and around
schools. In order to create a safe environment
that is conducive to learning, schools must
implement safety plans and comprehensive
prevention programs that address the root
causes of violence or face Tort Liability
charges.
Proposed Outcomes from this Project
"Our schoolchildren should never fear [for] their
safety when they enter into a classroom."
- President George W. Bush, 10/3/06
The goals for this project are to
•Educate administrators about
current trends in school violence.
•Make administrators aware of Tort
Liability issues as related to school
safety.
•Demonstrate how using a threat
assessment could benefit a
school.
Let’s review some definitions
before we proceed any further.
Tort Laws
Tort laws are laws that provide remedies to
individuals harmed by the unreasonable
actions of others.
 Tort claims usually involve state law and are
based on the legal premise that individuals are
liable for the consequences of their conduct if
it results in injury to others.
 Tort laws involve civil suits, which are actions
brought to protect an individuals private rights.

Two Major Types of Torts

Intentional torts: Offenses committed
by a person who attempts or intends to
do harm that result in injury

Negligence torts: When a person’s
actions lead to injury and those actions
were neither expected nor intended
Intentional Torts

Elements of an intentional tort
– A person intends to do another person harm
– Actual injury

Types of intentional torts
– Assault: An overt attempt to injure another or create fear or
apprehension
– Battery: A person is injured as a result of intention physical contact
Teachers & Intentional Torts
Assault & battery cases in education often
result from attempts to discipline a student or
stop a student from injuring someone
 Because courts are reluctant to interfere with a
teacher’s authority to discipline, teachers are
given considerable leeway by the courts in
assault & battery cases.
 Courts, however, have found teachers guilty of
assault & battery when discipline is cruel,
brutal, excessive, or administered with
malice, anger, or intent to injure.

Determining Liability
 When
determining if a teacher’s
actions or discipline constitutes
excessive or unreasonable
punishment, courts will examine:
– The age of a student,
– the instrument, if any, that was used,
– the extent of the discipline,
– the nature & gravity of a student’s offense,
– the history of the student’s previous conduct,
– the temper & conduct of the teacher
Negligence Torts
The difference between intentional torts and
negligence torts is that in negligence the acts
leading to injury are not intended to cause harm
but were caused by a person failing to act
reasonable to prevent the injury
 Students bringing negligence claims must prove
that school personnel should have foreseen and
prevented the injury by exercising proper care
 Accidents that could not have been prevented by
reasonable care are not negligence

The Elements of Negligence
1.
2.
3.
4.
Duty to Protect
A reasonable standard of care
Proximate cause
Actual injury
Duty to Protect
The first element that must be proven in
negligence cases is the duty to protect.
 Teachers have a duty to anticipate foreseeable
dangers & take necessary precautions to protect
students in their care
 Duties of educational personnel:
–Adequate supervision (includes activities on and
possibly away from school grounds)
–Maintenance of equipment & facilities
–Heightened supervision of high-risk activities
 This element is easily proven in most cases

Failing To Exercise a Reasonable
Standard of care
The second element that must be proven is that
the teacher failed to exercise a reasonable
standard of care to protect his or her students
from injury.
 Courts will gauge a teacher’s conduct on how a
“reasonable” teacher in a similar situation would
have acted.
 Degree of care is determined by:

 The teachers training & experience
 The student’s age & disability (if one exists)
 The nature of the environment & activity
 The presence/absence of a supervising teacher
Proximate Cause



The third element that must be proven is whether there
was a connection between the teacher’s breach of duty
and the student’s injury.
This element often hinges on the concept of
foreseeability.
– Was the student’s injury something that should have
been anticipated by the teacher?
If the injury could have been foreseen and prevented
by the teacher and/or if a reasonable standard of care
had been exercised, a logical connection, and therefore
negligence, may exist.
Actual Injury
The final element that must be proven
is that there was was actual mental or
physical injury.
 Even in instances where there was
negligence, if there is no actual injury,
damage suits will not be successful

What do we have to fear?

It's difficult to get a handle on trends
and patterns in school violence, but
the following slides do give a little
perspective on what schools may be
facing.
Wait!
Are those statistics improving?

Maybe the
statistics seem to
be better but they
are by no means
acceptable. Also,
there is one area
where statistics
are not improving.
Is it right that even one child be
fearful of school?
Let’s define bullying

Bullying is when someone keeps doing
or saying things to have power over
another person.
Bullying is abuse and schools may be
held liable for allowing this abuse to
continue.
Who are
the bullies?

Bullies may be other students.

Or bullies may be educators.

A bully is anyone that keeps
doing or saying things to have
power over another person.
The School’s Responsibilities
School districts should develop policies
regarding standards of care & supervision
There are five things every school should do
to protect itself.
§ Plan for Problems.
§ Supervise students carefully.
§ Keep thorough records. Document,
Document, Document.
§ Educate all stakeholders on the topics of
tort and violence.
§ Report incidents to the proper authority.
What are the courts saying about
school liability?
King v. Northeast Security, Inc.

After experiencing an
increase in criminal activity at
North Central High School,
the Metropolitan School
District of Washington
Township (IN) hired Northeast
Security, Inc. to provide
exterior security at the high
school. Nick King, a student
at North Central High School,
was attacked and brutally
beaten by four other students
in the school’s parking lot.
Nick sued Washington
Township and Northeast
Security for negligence.

The Indiana Supreme Court has ruled
that a school district can be sued for
failing to take reasonable steps to
provide security on school grounds.
The court also ruled that a private
security firm hired by the district
could be held liable for negligence in
performing its contractual duties. The
Indiana Supreme Court held that both
defendants could be held liable for
negligent failure to take reasonable
steps to provide adequate security
against the criminal acts of third
parties. In the case of the school
district, the court concluded that
while school districts cannot be sued
for failure to prevent crime, they may
be held legally responsible for failure
to take reasonable safety precautions.
Regarding the claim against Northeast
Security, the Supreme Court found
that the company could be held liable
for negligence “in carrying out its
contractually assumed obligation to
the district.”
Jennings v. Wentzville R-IV School District

On August 30, 2002, Rachel Jennings
and Lauren Schwaigert got drunk prior
to taking part in a cheerleader squad
performance at a football jamboree at
Wentzville Holt High School. At the
squad meeting the girls denied
drinking when questioned by their
advisor, Diane Moran. After five of the
cheerleaders threatened to quit, Moran
arranged for all the girls to meet with
her where the girls once again denied
their drinking. When Moran talked to
the parents the next day, the girls
admitted to their parents that they had
been drinking. When principal Waters
and District Superintendent Byrnes
conferred they removed Moran from
“her position as advisor to the squad
because of their belief that she
exhibited poor judgment in conducting
such a late-night meeting.” When
Waters gave the girls and their parents
opportunity to deny the charges and
defend themselves they failed to
respond with answers or defense and
instead presented a lawsuit.
Simultaneous with the suit, the
principal suspended both girls for 10
days according to school board policy.

The judgment at the Appeals court
presented by Riley agreed with the District
that “Rachel and Lauren received all the
process they were due for the suspension,
there is no constitutional violation upon
which municipal liability can be based.”
They also ruled that a “single incident…is
insufficient to make a lack of training
patently obvious.” Regarding Water’s
partiality, they agreed with the district that
he was simply acting as an administrator
and following District guidelines when he
suspended the girls.
Porter v. Ascension Parish School Board

A drawing depicting East Ascension High
School under siege was found in a sketch pad
 The decision was presented by
carried by Middle School student, Andrew
Breen drawn by his brother Adam Porter two
Higgenbotham, Circuit Judge for the
years prior to this. “It was crudely drawn,
United Court of Appeals for the Fifth
depicting the school under a state of siege by
Circuit. In reverse of the Circuit Court, the
a gasoline tanker truck, missile launcher,
appeals court found that Adam’s first
helicopter, and various armed persons.” “The
Amendment rights were violated because
sketch also contained obscenities and racial
he did not “intentionally” take or present
epithets directed at characters in the drawing,
the drawing and vulgar, racial and
a disparaging remark about EAHS principal
Conrad Braud, and a brick being hurled at
threatening words at the school. Therefore,
him.” After suspending Andrew, the sketch
they presented no “true threat.” However,
was sent by Middle School principal, Linda
Braud was entitled to “qualified immunity”
Wilson to Mr. Braud at the High School. Braud
because he perceived the drawing and
confronted Adam and a box cutter and
words as a threat to the students safety
references to death, drugs, sex, depictions of
and “he acted without the benefit of
gang symbols, and a fake ID were found after
established law.” The upper court,
a search. After being told to remain at home
until a hearing, Adam was arrested for
however agreed with the Circuit court that
“terrorizing the school and carrying an illegal
his search was reasonable after Adam
weapon. After being counseled by the hearing
admitted that the drawing was his. Also,
officer that he was likely to be expulsed, Linda
his procedural rights had not been violated
Lamendola decided to sign a hearing waiver
because he admitted to the drawing and
and enroll Adam in alternative school. After
the incriminating items were found in his
returning to EASH the following August, he
possession
dropped out in March 2002. Later, Mrs.
Lamendola decided to sue the school board
and its superintendent and both principals. At
the District Court level all claims were dropped
against all defendants except Principal Braud.
Meeker v. Edmundson

James R. Meeker, a freshman at Rosewood
High School, in Wayne County, NC, joined
the wrestling team where William H.
Edmundson, II was the coach. From
November 2000 through January 2001,
Coach Edmundson encouraged Meeker’s
teammates to abuse him. The complaint
alleged that at least 2 team members would
restrain Meeker and repeatedly beat his bare
belly, known as “red bellies”. This occurred
at least 25 times during the few months he
was a member of the wrestling team. These
beatings were endorsed by the coach in
order to precipitate Meeker resigning from
the wrestling team as there was a no-cut
policy. When Meeker approached the coach
about the beatings he was told they would
continue until he “toughened up and
stopped crying”. In January 2001, Meeker
suffering from “traumatic stress” and the
most recent beatings, brought a “multi-tool”
to school. This led to his suspension and
reassignment to a new school. In August
2003, Meeker’s parents filed suit against
Edmundson, the principal, the
superintendent, the chairman of the school
board and the school board for
compensatory and punitive damages for
violations of the parents’ constitutional
rights and civil rights. The court dismissed
all the charges except the violation of
Meeker’s constitutional rights by Coach
Edmundson. The Court refused to grant
Edmundson qualified immunity and he
appealed to the superior court

The beatings allowed by Coach
Edmundson violated a constitutional right
of Meeker, sighting Hall as precedence for
a substantive due process claim. The court
recognized the Fourteenth Amendment
liberty interest in bodily integrity from
Ingraham and the adoption of the Hall
rationale and holding.
Simonetti v. School District of Philadelphia,

Richard Simonetti, a fifth grade student,
upon returning from recess to his
classroom, was struck in the eye with a
pencil being propelled from another
student who had tripped while running.
The teacher, Mrs. Powell, an employee
of the School District of Philadelphia,
was in the hall monitoring the return of
her students from recess and speaking
with another teacher when the incident
occurred. The student, from whom the
pencil was propelled, was being
punished along with two other students
for misbehavior that occurred earlier in
the day and so had not been at recess.
They had been speaking with the
teacher during this time and when the
other students were returning from
recess, they were instructed to take
their seats as the teacher stepped out
of the room. The action against the
School District of Philadelphia
contended that the teacher was
negligent in failing to properly monitor
and supervise her classroom. The case
was tried without a jury and damages
were awarded by the judge in the
amount of $15,000 to the plaintiff and
his mother. An appeal was entered on
the case.

The Supreme Court, in 1984,
dismissed the superior court’s
ruling in favor of the appeal
due to it being improvidently
granted.
L.W. v. Toms River Regional Schools
Board of Education

L.W., who attended school in
the Toms River Regional
School District, suffered
repeated physical assaults
and verbal slurs over his
perceived sexual preference.
His parents brought an
administrative action against
the school district, alleging
peer sexual harassment
based on L.W.'s perceived
sexual orientation.

The Superior Court of New Jersey,
Appellate Division, has upheld the
state's Director of the Division of Civil
Rights' (DDCR) ruling that a school
district was liable for peer sexual
harassment based on sexual
orientation under New Jersey's Law
Against Discrimination (LAD).
Tate v. Board of Education of Prince
George’s County

Tanika Tate, a 15 year-old student at
Suitland High School in Prince
George’s County, Maryland, left
school without permission in the
company of her uncle-in-law for the
purpose of having sexual relations
with him. The uncle-in-law was later
convicted of statutory rape and
other offenses. Tanika sued the
school district, claiming that school
officials were negligent in not
preventing her uncle-in-law from
removing her from school without
permission. The school district
raised the defense of assumption of
the risk, arguing that Tanika
intentionally and voluntary exposed
herself to the known danger of
sexual relations with an adult.
Tanika countered that the school
district should be barred from
raising assumption of risk, because
consent is an essential element of
this defense and a criminal court
had already ruled that, as a minor,
she was unable to give legal
consent.

A Maryland appellate court has ruled
a school district can raise assumption
of risk as a defense to a negligence
claim by a student victim of statutory
rape where the student consented to
engaging in the sexual relations.
What will happen in the future to education
if school violence is not addressed?
While educators have
typically enjoyed immunity
from legal charges
concerning liability,
violence in schools is an
emotional issue for many
tax holders. More and
more courts will hold
schools responsible for
issues of violence. This
includes the issue of
bullying.
Recommendation: Threat Assessments
Today, more than ever, school officials are
confronted with questions as to how they
should handle student threats associated
with "I'll kill you" comments, death threats
and hit lists, murder plots, bomb plans, and
related school safety and security
concerns. One idea is to use a threat
assessment format whenever an issue
arises.
How would this situation be handled in your
school?
A 5th grade boy named Michael was in a public
park with his friend, Ethan. The two boys were
throwing fire crackers on the side walk under the
supervision of Ethan’s father. When the two boys
were called to leave they stuffed the fire crackers in
their jean pockets. Michael told Ethan not to forget
and take the fire crackers to school because the
firecrackers could blow up the school. At that
moment a girl from their class happened to walk by
and heard Michael say, “blow up the school”. This
was the only part of the conversation she
overheard.
How would this situation be handled in your
school? Cont.
The young lady went home and reported to her
mother the part of the comment she overheard.
The mother immediately called the principal.
How should the principal handle this situation? What
steps need to be taken?
The end result of the case
Before school started the next morning, the
principal phoned Michael’s mother at her work site
to notify her that her son would be arrested. He did
not speak with either of the boys before this phone
call.
Unable to leave her work, the mother in panic
called her husband. The father went to the school
to deal with the situation. The father persuaded the
principal to listen to the facts of the situation and
Michael was allowed to return to class.
The end result of the case, cont.
Ethan’s father also came to the office to help deal
with the situation. Ethan’s father happened to be
the school guidance counselor.
This case is a factual case happening at a private
school in Lynchburg, VA.
Schools and Educators need to learn how to ask
real questions. Tort Liability charges can be
leveled at any school or educator.
Questions to ask during a threat assessment.

What motivated the subject to make a threat or take an action?

What has the subject communicated concerning his or her intentions (to
the target, friends, family, law enforcement, in a diary or journal)?

Has the subject shown an interest in: assassins, weapons, radical
groups or ideas, mass murder, workplace violence, stalking?

Is there evidence that the subject has engaged in menacing, harassing,
stalking, or attack related behavior?

Has the subject developed an attack idea or plan?

Has the subject approached, visited, or followed the target? (with or
without a weapon)

Has the subject attempted to circumvent security?

Has the subject assaulted or attempted to assault target?

Does the subject have a history of mental illness involving
hallucinations, delusions, or feelings of persecution with indications that
the subject has acted on those beliefs?

How organized is the subject? Does the subject have the ability to plan
and execute a violent act?

Is there evidence that the subject is experiencing desperation or
despair? Has the subject experienced a recent loss?

Is the subject now or has the subject been suicidal?

Is the subject’s ‘story’ consistent with his or her actions?

Are those who know the subject concerned about the subject’s
actions?

What factors in the subject’s life might increase or decrease the
likelihood that the subject will attack a target?
Taking Positive Action
Be proactive, not reactive.
 Know the limits of the law and liability.
 Consult supervisors, lawyers, and
professional organizations as
appropriate.
 Protect yourself.

Resources and References







Youth Violence Home Page
Find Law
Cornell Law School
Rutger’s School of Law
Lexis-Nexis
Keep Schools Safe
National Youth Violence Prevention Resource
Center
Do our children deserve less than our best protection efforts?