PE and the Law
How did we get where we are today?

Not much case law in early 1900s
In 1940s and 1950s began to deal with safety of
facilities and equipment

1960s began Era of Growth and Change

1970s was “me decade” and people became
more aware of rights
1980s decade of greed



Media, lawyers, government immunity eroded
Where we are today? : Captions of Cases





Pool Drain Case Settled for $30.9 Million
Fall Off Jungle Gym: $500,000 Settlement
Deaf Lifeguard Sues for $20 Million
Failure to Warn Results in $3,500,000
Injured Student Sues for $52 Million: Awarded
$13 Million
Average injury award is over $1.5 Million
How can we explain this?
Q&A


What has wrought these changes?
Some say society has lost sight of
responsibility, everyone is looking for
someone else to blame

Positive Outcome: more attention to safe
practices and focus on how we treat people


Playgrounds, called games, bomb threat
High standard of care

In loco parentis = in place of the parent(s)
Legal Framework
Laws are like living organisms, they change and adapt
over time
Kinds of law – what are there?


Common Law = Case Law
 Precedence serves to create boundaries for future cases
Statutory Law



Passed by legislative bodies
Adopted by all forms of government
Constitutional Law – embodied by United States Constitution
United States Constitution

Amendment One

Freedom of Religion, of Speech, and of the Press
Students’ rights do not stop at the doors of the
school
Congress shall make no law respecting an
establishment of religion or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to
assemble, and to petition the government for a
redress of grievances.
United States Constitution

Amendment Four

Security from Unwarrantable Search and Seizure
Bodily fluids – Drug Testing
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searchers and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause,
supported by Oath, or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
United States Constitution

Amendment Ten

Powers Reserved to States or People
Education becomes right of state
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the states respectively, or to the people.
(Note: The first Ten Amendments, popularly known as the Bill of Rights,
were proposed by Congress, September 25, 1789, and were ratified
by the last necessary State December 15, 1791)
Law 101

Types of courts







U.S. Supreme Court
Federal Courts of
Appeal
Federal District
Courts
State Courts
Court of Claims
Court of Military
Appeals
Court of International
Trade
Law 101

Types of cases:

Civil case (tort case) - A tort is a civil action brought by
one party against another to redress some wrong
committed by the party being sued (the defendant)
against the party suing (the plaintiff).



Criminal case - A crime is punishable by loss of liberty
or life and is brought by the government against a
defendant for violation of that government's laws.


Burden of proof is not as high, often monetary compensation
Torts go through the state courts
Various levels of severity (drug, violent, white color, etc)
Recall the OJ case?
Law 101

Civil Law – a tort (legal action) can be
brought for acts of omission (failure to act) or
commission (acting improperly)

Negligence – failure to act as a reasonably
prudent person would under the same
circumstances




Nonfeasance – failure to do what is required
Misfeasance – doing something incorrectly
Malfeasance – doing something illegal
Legal terms for O&A
Law 101

Four questions courts use to determine
negligence
1.
2.
3.
4.
Duty – did one person owe a duty to another?
Breach – did that person failure to exercise that
duty?
Harm – was a person actually injured?
Cause – was the failure to exercise due care the
direct or proximate cause of the injury?
Negligence

Definition - failure to act with the prudence
that a reasonable person would exercise
under the same circumstances

From wordnet.princeton.edu
Defenses for Negligence

One of the elements missing






No duty, no breach of duty, cause could not be
established, no injury, just accident
Contributory Negligence
Comparative Negligence
Assumption of Risk
Act of God
Immunity
Contributory Negligence

Was the plaintiff at all at fault, or contributed
to accident?

The older the student, the easier to show
contributory negligence, should have appreciated
the danger of situation
Comparative Negligence

Court will divide responsibility among the
parties involved



Assessment of negligence on either side
EXAMPLE: If $100,00 and plaintiff is 40% at fault,
then will get $60,000
Arnold vs. Riddell regarding football helmet
 C4/C5 spinal fracture after helmet to helmet
collision. Shock attenuation system was defective.
Assumption of Risk


Inherent and Unfortunate VS Unacceptable
“Persons have a duty to use reasonable care to
avoid injury to others and may be held liable if
their careless conduct injures”


Yet, what was the role of the injured and the nature
of sport?
Regents of the University of CA vs. Roettgen

Student killed on a rock climbing trip. The Regents
was determined to have acted properly
Act of God



If lightening strikes without any warning
Beyond the control of anybody
Unpredictable, uncontrollable acts of nature



Could the defense of an act of God be used for a
coach who continued to practice in a thunderstorm?
Football recess story
Good Samaritan Laws


Giving first aid (don’t do things not trained for)
Different laws among states
Damages

Compensatory damages are compensation
for actual losses (e.g., medical bills, lost
wages, court costs) while punitive damages
are monetary awards to punish the
defendants (i.e., persons being sued) for
wrongful actions and to deter such actions in
the future
Preventing Negligence –
1) Supervision
Most basic responsibility of teachers is to properly
supervise students. That means number one,
being there. Number two, attending to your
students and not for example, creating a
practice plan for your team


What about if an office staff worker comes to the
gym during a 2nd grade lesson on body parts and
tells you there is an urgent call in the office?
NEVER EVER leave your students
unsupervised, you won’t have a leg to stand on.
1) Supervision

Supervision is more than just being present





Monitor and keep activities within the skill level of
individual students (differentiated instruction)
Keep students from participating in unsafe activities
Enforce class and safety rules
Keep records and be aware of student health status
(particularly IEP’s)
Provide spotting and other specific supervision in
activities of elevate risk such as gymnastics and
wrestling
1) Supervision
More suggestions



More dangerous an activity, the closer specific supervision
should be
Very close supervision is needed when athletes are
performing a skill for the first time
Learn to recognize and prevent excessive aggression


If a student is being bullied repeatedly by another student, it is
your responsibility to intervene. If all of a sudden the bullied
student “snaps,” and punches the other unconscious, you may be
partially (contributory) liable. The case would rely on
documentation and eye witness accounts.
Establish stop signals
1) Supervision

Supervision varies with:





Age and maturity
Amount of risk
Skill level
Preparation of students (1st day, prior
experiences?)
What about the locker room?


Privacy v. supervision?
Case from text
1) Supervision

General = all areas and activities related to
the game or activity


I had an administrator explain my areas
of supervision as whatever my eyes see
and do not see
Specific = the actual game or activity
1) Supervision

Supervision also means allowing
others to see you act as a reasonable
and prudent professional

Advise against, especially for male teachers, being
alone with a student (office, equipment room, etc). In
such instances, it is your word against yours. Either
way you will lose, if not legally, personally.


At the minimum, leave the door open
Totally fictitious claims have been brought against
teachers due to attractions, grades, and malice.
1) Supervision

Neal vs. Fayette County Board of Education
5th Grade PE Basketball Unit


Case: Partially amputated finger while dunking b-ball
during class. Sued on basis that 2 students
previously were injured, claiming hoop was defective
and dangerous, as well as not properly supervised
Ruling: Court ruled for the school. The two previous
cases did not prove hoop was defective and also, the
teachers warned students not to dunk
Preventing Negligence –
2) Instruction
Duty to teach appropriate techniques,
properly, and include safety rules. Always
remember the mantra of “reasonable and
prudent”

Failure to Instruct - relates to:



Skills and Techniques
Methodology
 Planning, lessons, rules, facilities, equipment
Duty to Warn (if applicable)

Knowledge of risks and benefits of activity
Understanding of Safety Concerns
2) Instruction
Additional Suggestions







Progression of skill development
 Levels 1-5
Correct the incorrect
 Don’t ignore, rotate giving feedback
 If a reasonable and prudent PE teacher would have corrected
the mistake, you will likely lose the lawsuit
Risk of activity should match the skill level and training of instructor
 Don’t get in over your head
Use proper and safe equipment including safety devices (masks,
helmets, etc)
Sufficient space
Don’t “force” a student to perform an activity in which they are
clearly uncomfortable (adventure?)
Don’t use exercise as a punishment
2) Instruction
Additional Suggestions
Match and Mismatch

Pairing of individuals or groups without regard to:









Age
Height
Weight
Skill
Maturity
Mental State/Disability
Experience
Counting off may not be appropriate in some instances
Example: steal the bacon
2) Instruction
Additional Suggestions

Match/Mismatch: A similar case was heard by a federal district
court in Pennsylvania. In Cohen v. School District (1992), a special
education student with learning disabilities, behavior problems, and
known violent tendencies was mainstreamed without adequate
supervision. Without provocation, the student attacked and injured a
peer in his classroom. The parents of the injured student sued the
school maintaining that the injured student’s rights had been
violated. The court held that placing a student with behavior
problems in the general education setting is not unconstitutional per
se. That is, it is not a violation of law to place a potentially violent
student in a general education classroom. The court stated such a
placement, however, may result in school officials being held liable if
the officials knew that a student with disabilities was violent, and
they placed the student in the general education classroom without
adequate supervision.
Preventing Negligence
3) Equipment & Facilities


Plan for periodic inspections and keep the
records
Report deficiencies (broken lock, warped floor,
etc)



Traceable manner such as email
Advise students of dangers (wet floor)
Lock facilities when not in use

If a student gets into an empty gym and injures
themselves, you’re at fault
3) Equipment & Facilities

Keep up to date on current practices regarding
facilities and equipment



Swimming pools


Soccer goal example
http://www.momsteam.com/sports/soccer/safety/socce
r-goalposts-can-be-deadly-hazard
Use lifeguards to decrease liability
Wet grass outside

Error on the side of caution
3) Equipment & Facilities

“Attractive nuisance” – dangerous situation
that attracts the attention of youth



Facilities Checklist


Applicable to under 14 years old
Why most playgrounds have a fence around
them, why equipment is locked up…
Tom Bowler
Create and post rules/guidelines
Preventing Negligence
3) Equipment & Facilities

Everett vs. Bucky Warren – Hockey helmets



Ordered dangerous defective equipment
When request students to purchase equipment
and they do not – should not allow them to play.
DUTY goes beyond just requesting . . . Must
ensure they follow through . . .
Q&A

Injuries WILL OCCUR on your watch, how
can your school district prepare for them and
prevent further injury once one has occurred

1)

2)
Q&A

Preparation for an injury:

Create a risk management plan



Only addition would be the addition of a
communication device such as a walkie-talkie or a cell
phone (battery)
Sample plan
Instructions for creating a risk management
plan
If an Injury Occurs


Summon help
Provide first aid

Two common errors is doing too little or too much



Make sure CPR and First Aid credentials are up to date
It’s a good idea to have one person on staff who is a
CPR and First Aid instructor
Complete an injury report - example


REMEMBER, THIS DOCUMENT CAN EASILY BE
USED IN COURT!!!!!!
Do immediately before the details become fuzzy
Sample Injuries from PE

Act as “reasonable & prudent” professional










Lack of supervision (Ithaca wall partition)
Unanticipated performances (diss long jump)
Equipment/facilities (pamper pole trapeze)
Bee sting (boy’s club)
Age appropriate activities (3rd grade BB)
W. Hartford Elem (VB standards, equipment on side)
Trumbull (crash mat under cargo net)
Chenango Forks (arrhythmia while swimming)
SSW J. Rose (attendance) – keep records
Other cases you’ve heard of?
Sample Injuries from PE

Gym Teacher Sued by Injured Weightlifter



A former student whose eye was injured by a broken exercise
band has sued his gym teacher, reports the Richmond
Register. The incident occurred during a high-school weightlifting
class in 2007.
According to the filing, the plaintiff claims that the teacher failed
to supervise the student properly, or to keep the weightlifting
equipment reasonably safe. The Richmond Register reported
that the student was blinded in the left eye.
Dodgeball – NYS example
Sample Injuries from PE





By Marc Davis, The Virginian-Pilot
TWO YEARS AGO, a 12-year-old girl was hit in the mouth with a baseball
bat during gym class at Landstown Middle School in Virginia Beach.
It was an accident. The girl was the catcher, but the teacher had not given
her a mask. As the girl reached for a ball, the batter swung. The bat caught
the catcher flush in the teeth.
One tooth was knocked out. Six others were broken. After much dental
work, the girl now has a bridge on her top teeth and four crowns below. Her
parents, who had no health insurance, paid $8,587 to repair the damage.
http://hamptonroads.com/2007/08/state-law-often-shields-cities-andschools-being-sued
Additional Cases



Wrestling
Football
Golf
Liability Insurance

May be included through the school district,
the teacher’s union, or a national organization
such as the NEA or AFT


Often a collaboration between the district’s
teacher’s union and the national organization
Private insurance:



AAHPERD
http://www.aaeteachers.org/insurance.shtml
Examples: 1, 2, 3
Liability Insurance



Non-public school teachers (catholic schools,
etc) often do NOT have employer or union
provided liability insurance.
Administrators – OFTEN carry additional
insurance (more often cited in lawsuits)
As a student teacher, you are insured by the
CSU system.
Teacher Protection Act

http://www.nea-nm.org/ESEA/TPA.htm
Sexual Harassment

Student to student sexual harassment

CT Commissioner’s Report: “plaintiff would have
to establish that the school board had actual
knowledge of the sexual harassment and was
deliberately indifferent to the sexual harassment.”


Sexual Harassment Handout for Students


Result of 1999 Supreme Court Decision
From State of CT Board of Ed
Discrimination Free Schools Policy

CT Commissioner of Ed.
Negligence & Coaching

CT Coaching Competencies


Required training


Extensive
5 year renewable license
NASPE Coach’s Code of Conduct


Good to review whether coaching or the AD with all
coaches
These guidelines are published by the state and your
national organization (AAHPERD). Failure to adhere
to these guidelines can be used against you.
Therefore, it behooves you to follow and familiarize
yourself with them.
Duty to Warn - Coaches
DO YOU:
 Warn about dangers of improper techniques?
 Tell athletes specifically about types of injuries
they could suffer from improper techniques?
 Warn parents about injuries and consequences
of playing sport?
 Illustrate these warning with charts or provide
written warnings?
What are the risks in your
sport?

Nature of the Game
Rules of the Game
Playing Environment
Playing Equipment

Develop a list of risks in a sport




List of HS/MS Activities
Drafting a Written Warning




Use list of risks to draft out a written statement to
distribute among athletes
Needs to be adapted so information is clear for
the age and experience of athletes
Be concise and honest
Review and revise with another coach
HOW will you give
the warning effectively?


Do not make assumption that athletes
already know
Use visual and verbal explanations

See next slide
Using Waivers

Add a waiver at the end of the written
statement


Similar to “Informed Consent” or “Assumption of
Risk”
Signature indicates knowledge,
understanding, and appreciation of risks

Willingness to waive legal rights to hold you
legally responsible in event of injury
Why should you NOT rely
on a waiver for legal protection?

A minor’s rights cannot be waived.


Until a minor reaches legal age, s/he is not mature
enough to fully understand terms
Why use waivers then?



Valid agreement, you now have an assumption of risk
Yet a signed waiver has been contested in court
Acting appropriately in the first place and accepting
responsibility for warning athletes and parents about
risks has more protection than trying to claim
innocence later
What needs to be
included in a waiver?








Who is protected by agreement
Need to use language that can be broadly interpreted
Avoid statements that are fraudulent
Make sure to use proper title
Should be a separate sheet and not on a membership form
Font should be at least 10 font
Language should be clear and bold lettering and a caution
statement, read before signing
Signatures should be near the language with a statement
assuring that you have read it
Summary

Legal guidelines from the text
Better to be safe than sorry

Note on standing in a doorway

Assignment

Research 2 legal cases online, one related to
PE, the other to coaching


Post the website link online in Vista under the
legal cases blog (in assignment tab) including
your name
Bring a PRINTOUT summary of both cases next
class to present/discuss and hand in

Include the web address