RUNNING HEAD: TORT LIABILITY
EXAM CASE: TORT LIABILITY
JOYCE H. FRAGALE
SCHOOL LAW, EDU 702
UNIVERSITY OF NEW ENGLAND
FEBRUARY 1, 2014
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Exam Case: Illinois… [11/23/12]
Facts: Jon White was employed by Urbana School District No. 116 (USD116) as a teacher and
assigned to Thomas Paine Elementary School. During his tenure there, he sexually abused two
female students (the Plaintiffs). Prior to his employment with USD116, White had been
employed by McLean County Unit District No. 5 (MCUD5) from 2002 to 2005 as an elementary
school teacher. Between 2002 and 2005, Plaintiffs allege that MCUD5 acquired knowledge of
White’s “teacher-on-student sexual harassment, sexual abuse, and/or sexual grooming” of minor
female students. Plaintiffs claim that MCUD5 did not record those incidents in White’s
personnel file or employment record, failed to make timely mandated reports of White’s abuse,
and failed to investigate parental complaints.
According to the complaint, during the 2004-05 school year, MCUD5 disciplined White for
alleged sexual misconduct by removing him from his classroom in October 2004, and again in
April or May 2005. In 2005, prior to the close of the 2004-05 school year, MCUD5 entered into
a severance agreement with White which concealed his sexual abuse of students. Also in 2005,
MCUD5 “created a falsely positive letter of reference for White” which concealed known sexual
abuse of female students.
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TORT CASE ANALYSIS
Legal Basis of Tort Law
Tort
“…42 U.S.C. Section1983, passed back in 1871, …allowed for civil damage actions of those
“who, under the color of state law” had deprived others of constitutional rights (Hilman and
Trevaskis, 2014, p. 2-1). A tort is a civil wrong, an offense causing harm against an individual,
not including breaches of contract. Torts are based on Common Law, which means they are
given consideration based on the outcomes of past cases, typically reflecting societal norms. A
tort cannot exist without harm. If proven guilty individuals charged with a tort are required to
pay monetary damages to the plaintiff. The plaintiff in a civil matter must prove things only
beyond a preponderance of evidence (Crimes must be proven beyond a reasonable doubt). In the
case of a tort an individual brings a claim against another (In the case of a crime the government
pursues action against the individual). There are 3 primary types of torts: Intentional, Strict
Liability, and Negligence
Intentional Torts
In the case of an intentional tort the harm is deliberate and not caused by accident.
Intentional Torts have 4 subtypes:
Assault and Battery – This tort usually exists in the form of corporal punishment in
school systems. Corporal punishment is legal in 19 states. In the case of Ingraham v.
Wright, 430 U.S. 651 (1977), the U.S. Supreme Court ruled that corporal punishment of
students did not violate the Eighth Amendment of the U.S. Constitution (Hilman and
Trevaskis, 2014). The question to be asked is, “Would a “reasonable” teacher commit
this act?” The legal test is “reasonableness of discipline”. The legal test in those states
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where corporal punishment is illegal is “reasonable force”. The plaintiff is likely to have
a good case if there is proof of malice, or punishment is excessive, resulting in injury.
False Imprisonment is defined as locking a person in an area, constraining a person
physically, or restraining or detaining a person through verbal commands or intimidation.
Restraint and seclusion policies come into play here. Due to the fact that there are no
laws pertaining to restraint and seclusion at the federal level, and laws at the state level
vary, the U.S. Department of Education released guidelines containing 15 rules
regarding restraint and seclusion in schools (Hilman and Trevaskis, 2014). The legal test
is “reasonableness of action”. In a 1983 action lawsuit, Jackson Public Schools in
Mississippi settled regarding a case where students were handcuffed to objects for
minor offenses. The terms of the settlement did require employee training. However, it
still allowed for the handcuffing of students older than 13, for offenses meeting the
definition of a crime.
Intentional Infliction of Mental Stress – In order to prove this tort the individual has
experienced severe mental stress. Due to the severity needed in order for the behavior to
pass the legal test, “flagrant, extreme, or outrageous—basically atrocious and utterly
intolerable” (Hilman and Trevaskis, 2014, p. 2-9), intentional infliction of mental stress
is hard to prove. In the case of Stamper v. Charlotte–Mecklenburg Board of Education,
143 N.C. App. 172, 544 S.E.2d 818 (2001, as cited in Hilman and Trevaskis, 2014), a
teacher unsuccessfully tried to use this tort to avoid dismissal.
Defamation consists of slander and libel. Slander represents the spoken word, and libel
represents the written word, including graphics or models. The damage is injury to an
individual’s reputation. The legal test is “Malicious intent to injure and reckless disregard
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for the truth”. If an individual acts in good faith, and is telling the truth, there is no
defamation.
Strict Liability
If a person brings a dangerous object into a setting where this object does not normally reside,
and harm is brought upon an individual due to this action, then the person responsible for
introducing the object into the setting is liable for damages that occur. If found guilty, an
individual has no defense for Strict Liability.
Negligence
The act of doing something that a “reasonably prudent” individual would not do, or not doing
something that a “reasonably prudent” individual would, is considered negligence. To prove
negligence four elements must exist: There must be a duty, there must be a breach of duty, an
injury must occur, and the negligent individual, or the actions or inaction on the part of the
negligent individual, must be the proximate cause of the injury. The question of whether or not
the negligent individual acted in a manner to prevent “foreseeable harm” must also be answered.
Other considerations also come into play when proving negligence.
Then in assessing adequacy of supervision, courts will consider the characteristics of the
children involved in the matter:
a. Age;
b. Developmental level;
c. Experience;
d. Reputation;
e. Number of students supervised; and
f. Nature of exercise or activity.
If students are left unsupervised, two additional factors are considered:
g. Length of time unsupervised; and
h. Reason for lack of supervision (Hilman and Trevaskis, 2014, p. 2-12).
Sovereign Immunity, Contributory Negligence, Comparative Negligence, Assumption of
Risk, Intervening Event, Act of God, and In loco parentis, are all possible defenses to an act of
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Negligence.
Sovereign Immunity refers to state statutes that protect individuals performing
discretionary acts, as long as the test of “reasonableness” can be passed. Ministerial acts do not
receive consideration under Sovereign Immunity, as they represent policy that must be followed
precisely, and no exercise in judgment is warranted. Contributory Negligence represents the
defense that the plaintiff contributed substantially to his/her own injury, and therefore should
share in the damages. Comparative Negligence is used as a defense when the courts decide that
several parties contributed to the injury. A percentage of the damages, usually based on the
defendants’ contribution to the act of negligence, are collected from each of the individual
responsible parties. Assumption of risk comes into play when the individual knows of the risks
involved in an activity, and decides to participate in spite of that knowledge. Intervening Event
is a defense used to prove that the defendant was not the proximate cause of the injury. An Act
of God is an unforeseeable event that could not be controlled by the defendant, usually
something that occurs in nature. In loco parentis is a defense that holds an individual at a level
of accountability, no higher than that of a parent.
In addition to the defenses above, No Child Left Behind legislation protects educators
from being sued through The Paul D. Coverdell Teacher Protection Act. This act protects
teachers who undertake “reasonable actions to maintain order, discipline, and an appropriate
educational environment.” (as cited in Hilman and Trevaskis, 2014, p. 2-16).
Mark which type of case this is:
 Intentional Tort and name which subtype: ________________
 Strict Liability
XXX Negligence
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Lawyers Arguments of Behalf of the Plaintiffs – Female Students
MCUD5 has a duty to provide students with a safe environment:
As cited in Hilman and Travaskis (2014, p.2-11) “Case after case has recognized three common
law duties all relating to safety: A. Provide supervision of students, B. Provide safety
instruction, and C. Provide safe facility”. Above this it is the responsibility of MCUD5 to hire,
and monitor personnel who are qualified and capable of prudently carrying out the duties of their
position, and to employ individuals who can be trusted to protect the safety of students. The
1999 United States Supreme Court case of Davis v. Monroe County Board of Education, 526
U.S. 629 (1999), resulted in a 5-4 decision that “allowed for liability under Title IX when
schools act with deliberate indifference to gender based harassment that is severe enough to
prevent victims from enjoying educational opportunities” (Hilman and Trevaskis, 2014, pp. 220221).
MCUD5 Breached Its’ Duty to Students on Several Accounts
MCUD5 failed, not only in hiring qualified personnel, but also in providing adequate supervision
of personnel, thus compromising the safety of its’ students. MCUD5, knowing that issues
concerning sexual harassment, sexual abuse, and/or sexual grooming, existed in their schools,
failed to provide training to staff, as well as developmentally appropriate training to students.
Not only did the district fail to have appropriate safeguards in place, but when issues surrounding
White’s conduct were brought to light, MCUD5 chose to look the other way at the expense of the
safety of its’ students, by failing to fully investigate allegations. MCUD5 not only failed to
record offenses in White’s personnel file, but also failed to complete mandated reports, as well as
investigate parental complaints. This pales in light of the fact that MCUD5 repeatedly
reintegrated White into the classroom, thus leaving his victims open to more abuse. There is a
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distinct possibility that this caused students to fear the repercussions of further reporting, thus
masking the full extent and impact of this issue. The resulting school environment can only be
deemed unsafe for any student, but this is especially disconcerting when we speak of the impact
that this must have had on developmentally young elementary school age children. The final
insult which serves as evidence of the blatant disregard that MCUD5 has for the safety of not
only the students enrolled within their schools, but the safety of all children, was the creation of a
severance agreement which concealed White’s transgressions, as well as a positive letter of
reference. MCUD5 not only protected the perpetrator, but also created a situation by which, as
indicated by the abuse of the plaintiffs, caused further injury.
A Resulting Injury Occurred
We know of the injury endured by two students who may have otherwise, had MCUD5 acted
prudently, been protected from being exposed to the defendant. The injuries that we cannot
ascertain are those caused by the blatant disregard by MSUD5 regarding their duty,
responsibility, and obligation to provide a safe learning environment for all students. Injuries
were no doubt incurred by those whose voices we have not heard, but who none the less suffered
either silently, afraid of repercussions from a teacher who they were repeatedly forced to be
exposed to regardless of countless allegations, or those who indeed did speak out, only to find
that their complaints fell upon the deaf ears of MCUD5.
The Defendant Is Not Only The Proximate Cause of the Injury, but Failed to Exercise
Reasonable Means to Prevent Foreseeable Harm
MSUD5 should be held to the highest level of accountability in this matter. Its’ representatives
acted irresponsibly in all manners of their duties. Actions otherwise would have prevented
injuries, both recorded and unspoken, from taking place. The accounts of action taken on behalf
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of the perpetrator, as well as inaction on behalf of the plaintiff, all point toward complete
disregard for the present safety of their students, as well as the future safety of others.
Lawyers Arguments of Behalf of the Defendant – MCUD5
MCUD5 has a duty to provide students with a safe environment:
All schools, including MCUD5, have a duty to provide a safe environment for their students.
Schools must use reasonable judgment in order to prevent foreseeable harm. The defense acted
in good faith, and based on the knowledge that they had about Mr. White, provided adequate
supervision afforded to all staff employed by MSUD5. The defense would like to point to In
loco parentis as the representatives of MCUD5 provided a level of supervision and
accountability befitting the situation. The defense would also like to receive consideration under
Sovereign Immunity. Allegations brought upon White by the students were alleged. MCUD5
lacks policy surrounding said alleged issues. Therefore actions carried out cannot be considered
ministerial, and the representatives of MCUD5 used reasonable discretion in their handling of the
situation.
MCUD5 Upheld Its’ Duty to Students
MCUD5 acted prudently in providing a safe environment for its’ students. The allegations
brought forth by parents were dealt with, as proved by the teacher being disciplined for the
alleged sexual misconduct through removal from the classroom in October, and April or May.
The allegations during the time that the students were enrolled at MCUD5 were not proven, and
given the age, and developmental level of the students, could have easily been misconstrued as
untrue. At no time during the hiring, employment, or in consideration of future employment,
could the representatives of MCUD5 have reasonably predicted the future events that took place
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in a separate school district given that allegations were never proven to be factual during White’s
employment within MCUD5.
A Resulting Injury Occurred
It is obvious, based on the fact that the offense took place in an alternative district, that the
precautionary actions taken by MCUD5 prevented the injury from taking place within its’
schools system. No injury is proven to have occurred that can be considered the responsibility of
MCUD5.
The Defendant Is Not The Proximate Cause of the Injury, and Acted in a Reasonable and
Prudent Manner in Preventing Foreseeable Harm
Due to the fact that the incident did not take place within the MCUD5 school district, the district
actions cannot be deemed as the proximate cause of the injury. Also, due to the fact that the
allegations were not proven, MCUD5 was left with no choice but to provide Mr. White with an
adequate severance agreement and reference. At no time during his employment with MCUD5
was there a formal charge against White. Plaintiffs allege that MCUD5 acquired knowledge
pertaining to Whites sexual harassment of minor students. The parents did not keep their
students from attending school, nor did the students refuse to attend school or White’s classes.
Who will win the case?
If the facts are proven as they stand I believe that the plaintiffs will win the case. The plaintiff in
a civil matter must prove things only beyond a preponderance of evidence. In my opinion, given
the fact that schools are held to a high level of accountability when it comes to the safety of
students, the jury will view the actions/inactions of MCUD5 as irresponsible. In school, as in the
workplace, any hint of harassment must be fully investigated and dealt with. As stated in the
case analysis above, this case has all of the ingredients necessary to establish the tort of
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negligence. It is easily established that MCUD5, as any school entity, had a duty toward its’
students. This duty was breached on several counts in spite of known alleged harassment: lack
of apparent policy, lack of training, lack of action, and concealment of an alleged offense.
Injuries occurred. Prudent individuals would have acknowledged potential outcomes of their
inaction. Therefore, it could be argued that the potential for injury, which eventually came to
fruition, should have been foreseen. A prudent individual would have also been aware that the
potential for injury, and indeed actual injury, although not pursued, was in fact taking place in
the MCUD5 school system, by the inaction of their representatives. MCUD5’s lack of pursuit,
and in fact concealment of allegations within their school system, can be directly linked to the
gainful employment of Mr. White by Urbana School District #116, which then resulted in the
sexual abuse of the plaintiffs. The actions of MCUD5 fit the criteria described in The 1999
United States Supreme Court case of Davis v. Monroe County Board of Education, 526 U.S.
629 (1999), which “allowed for liability under Title IX when schools act with deliberate
indifference to gender based harassment that is severe enough to prevent victims from enjoying
educational opportunities” (Hilman and Trevaskis, 2014, pp. 220-221). The defense is unlikely
to be able to claim In loco parentis given that a parent with the same knowledge is unlikely to
continually expose their child to an alleged offender. Sovereign Immunity, in spite of the fact
that the allegations had not been substantiated, and even in the absence of policy thus negating a
ministerial act, is unlikely to receive consideration under sexual harassment. The discretion of
prudent individuals would have unlikely had the same result. The judge may however grant
comparative negligence between several parties, including the parents.
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REFERENCES
Hilman, S., & Trevaskis, D. (2014). school law: Legal framework, guiding principles, and
litigated areas. Pennsylvania Council for the Social Studies. Retrieved from
http://pcssonline.org/products-page/textbooks/digital-books
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