Chapter Six
School Personnel & District Liability
Presented by:
Cathy Hardison, JD, PhD
Associate Dean, Heritage University
Attorney-at-Law
AND
Charles Wheaton, PhD
Online Curriculum Specialist/Faculty Trainer
Heritage University
Ch 6, Schl Personnel District Liab
Hardison/Wheaton HU 11-12
1
Is Your School Safe?

Basic presumption = kids are safe
 Place where learning takes place
 Staff acting in place of parents (“in loco
parentis”)
– Must instruct, supervise, and provide for safety of
students/staff during the school day

Parents must be assured school staff are
reasonable professional adults
Ch 6, Schl Pers Liab
Hardison/Wheaton HU 11-12
2
Is Your School Safe?

Scenario
– You receive a complaint from a middle school student that
his teacher uses a discipline technique that “hurts” him.
While you discuss the problem with the student you discover
the teacher takes the hand of the student and asks him to
form a fist.
– After the student does as he is told, the teacher presses
down on the first knuckle of the middle finger and pushes the
finger downward into the palm of the student’s hand.
– When you confront the teacher he laughs and says it is a
discipline technique when he catches students “flipping off”
teachers, campus security, other students, etc.
– What is your response?
Ch 6, Schl Pers Liab
Hardison/Wheaton HU 11-12
3
Duty/ Affirmative Legal Obligation

School staff will take whatever necessary measures
to
– Ensure safety
– Keep the school environment conducive to learning
– Affirmative duty to alleviate crime and violence (Hosemann
v. Oakland Unified SD) page 170
• Does this case affect us?
– Doe v. Taylor. Texas case. Sexual abuse of female student.
Principal held to standard of “should have known,”
superintendent exonerated (held blameless)
Ch 6, Schl Pers Liab
Hardison/Wheaton HU 11-12
4
Is Your School Safe?




It is late May. You hear a student rumor that your friend, the
school’s chemistry teacher, is teaching students how to make
bombs, using common household/landscaping items.
When you ask some of her students, they tell you she is, indeed,
showing them how to make a bomb similar to the one set off in
Oklahoma.
When you ask the teacher about the rumor, she affirms it and
says she is using a teaching technique to keep student interest
and they promise to never use the information.
What is your response?
Ch 6, Schl Pers Liab
Hardison/Wheaton HU 11-12
5
How Do You Limit Liability for
School Violence?


Is your school possibly another Columbine?
Students are afraid in American schools
– Washington from 1992-93 to 2002-03 reported 12 deaths related to
school violence
• (Only Calif 74, Colorado 15, Florida 19, Georgia 17, Mass 14, New
York 16, Penn 14, Texas 23 reported more deaths)*
• During each hour of the day, 2,000 students, 3-4 teachers are attacked
AT SCHOOL*
• 5% of students in US, 12-18, fear being attacked or harmed AT
SCHOOL*

Can anyone find more recent statistics?
 Can these statistics be challenged? How?
Source: National School Safety Center quoted in School Law by Essex
Ch 6, Schl Pers Liab
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6
School Violence Statistics



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
School year 07-08 = 43 Violent deaths assoc with school, out of
55.6 million students K-12
2007 = 1.5 million students 12-18 victims of non-fatal crimes in
schools (theft, fighting, etc). 1.1 million out of school
2007-08 School year 4% students reporting being victimized
2007 = 10% male, 5% female high school students reporting
being threatened w/ a weapon on school property
2007 = 32% cases of bullying 12-18 (being made fun of,
excluded, being threatened with injury)
www.nssc1.org/important-school-statistics.html
Ch 6, Schl Pers Liab
Hardison/Wheaton HU 11-12
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Is Your School Safe?
What are some situations in your school
that are not safe?
 How can you personally assure that
your school is safe?
 What if you are not a school staff
member and know about unsafe
conditions at a local school?

Ch 6, Schl Pers Liab
Hardison/Wheaton HU 11-12
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What is a Tort?





Actionable or civil wrong (can go to court to
seek relief)
Committed against another
Separate from contract law, criminal law
Can be intentional, have strict liability, or be
the result of negligence--meaning?
If due to actions of school personnel can be
liable in court for actions
Ch 6, Schl Pers Liab
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Prior Knowledge-How Established?

What criteria does your school use to identify
potentially violent students?
 Case in Kentucky (45 defendants). Three
fatalities. Claim is that Ds knew or should
have known 14 year old was capable of
violence. Indicators were:
– Violent papers-shooting students, detonating
bombs at school. No one told officials

But what about student privacy? Remember
“Tinker?” OK to violate if …
Ch 6, Schl Pers Liab
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Prior Knowledge-How Established?
Tinker found that if there were facts that
might reasonably lead school authorities
to forecast a substantial disruption or
material interference with the
educational process, then rights are not
violated
 Can student/writer be disciplined?
 GET THE GUN!! (Randy Town)

Ch 6, Schl Pers Liab
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11
Admin Best Practice School Violence
(Essex), BUT HOW-Your Ideas??



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Pay serious attention to warning signs from students or staff
Attend to any threat made by a student or staff member
Create an atmosphere of trust to provide for anonymously report
potential violence
Implement a zero tolerance policy for violent acts
Do not tolerate ridicule, hurtful teasing, taunts between staff to
staff, staff to students, student to student,or student to staff
Design and implement programs that provide for success of all
students
Ch 6, Schl Pers Liab
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Administrative Best Practice
School Violence from Essex




Make sure students who do not fit in are provided
opportunities for counseling/to gain social skills
Have a plan for quick response when an act of
violence occurs and make sure all parties know their
roles
Provide staff development for staff on violence and
resulting liability
Educate staff, students, parents, community
members about school safety and methods to secure
the school(s)
Ch 6, Schl Pers Liab
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13
Gangs and Schools

Gang behavior might be foreseen, therefore school officials may
be held to be negligent if they do not take steps to prevent injury
by gang members.
– Must monitor gang behavior-how?
– Act quickly to info that gang activity is
escalating--what signs might indicate
escalation?)
Ch 6, Schl Pers Liab
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Liability of School Staff

Two categories
– Intentional torts (Examples?)
•
•
•
•
Assault-creating fear of harm in mind of V
Battery-unwanted physical contact (The bat)
Libel-defamation in print
Slander-verbal defamation
Ch 6, Schl Pers Liab
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Liability of School Staff
– Intentional torts (Examples?)
• False arrest-unlawful restraint of another
person’s personal liberty or freedom of
movement (locomotion)
– EXAMPLE?
• Malicious prosecution-damage to reputation for
civil or criminal proceedings prosecuted w/o
probable cause or with malice
– EXAMPLE?
Ch 6, Schl Pers Liab
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Liability of School Staff

Invasion of privacy-wrongful intrusion
into a person’s private activities by
others or by government. Tort law
protects private affairs of no concern to
the public-causes mental suffering or
humiliation to the average person
(student/staff)
– EXAMPLE?
Ch 6, Schl Pers Liab
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Individual Liability of
School Staff

Usually not individually liable unless
– Plaintiff can clearly demonstrate
• That employee’s action violated an established law
• Ee showed a reckless disregard for the plaintiff’s rights

USSC clarified conditions for damage awards in
Carey (1978)
– Violated due process, give no hearing
– One suspended for 20 days for smoking marijuana on school
property during school hours
– Other for 20 days for wearing a earring in school when
school was trying to prevent gang activity
Ch 6, Schl Pers Liab
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Vicarious Liability

Impute (to bring legal charges against
somebody because a person that he is
responsible for has committed an offense)
liability upon one person for the actions of
another
 Respondeat superior means supervisor is
liable if ee acts, within the scope of his
employment, and injures another
 Usually liability is imputed to the School
Board, but supervisor is first in line for blame
Ch 6, Schl Pers Liab
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Meaning of Foreseeability?

Ability of predict/anticipate that a certain activity can
potentially be harmful to another (usually a student)
 Need to act in a prudent (good judgment -common
sense) manner to prevent the activity from happening
 If plaintiff can show foreseeability and subsequent
inaction/failure to warn, then can create liability
 Examples?
Ch 6, Schl Pers Liab
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Vicarious Liability

Impute (to bring legal charges against
somebody because a person that he is
responsible for has committed an offense)
liability upon one person for the actions of
another
 Respondeat superior means supervisor is
liable if ee acts, within the scope of his
employment, and injures another
 Usually liability is imputed to the School
Board, but supervisor is first in line for blame
Ch 6, Schl Pers Liab
Hardison/Wheaton HU 11-12
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What is a Nuisance?

Condition restricting use of property or
creates a potentially dangerous situation for
the user
 School officials have a duty
– To maintain a safe premises for invitees, licensees
and even trespassers under certain conditions
– To warn of hazardous conditions
– To correct or remove hazardous conditions
Ch 6, Schl Pers Liab
Hardison/Wheaton HU 11-12
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What is an Attractive Nuisance?

Important concept, especially for elementary
– Dangerous instrument/condition in itself
– Heightened Standard of Care-Responsible person
• Knew, should have known children would be attracted
• Knew hazardous condition would attract children (expect
children to play or satisfy youthful curiosity)
• Children TOO YOUNG to be aware of risk
• Utility formula used. Cost of eliminating the risk less than risk
to children
• Owner (school district) failure to eliminate the risk, did not
exercise care)
– Examples? (fenced swimming pool--OTHERS??)
Ch 6, Schl Pers Liab
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What is Defamation?

FALSE statements made about another
– Tend to or actually harm a person’s good name or
reputation OR
– Subject that person to hatred, contempt or ridicule
– TRUTH defense only when absence of malice

Has to be communicated to a third party
 Qualified privilege (interest in information and
act in good faith w/o intent to harm)
– No evidence statements made with personal spite,
ill-will, or culpable recklessness or negligence
Ch 6, Schl Pers Liab
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What is Defamation?

Places where school personnel must watch out for
inadvertent comments
– Staff lounge, grocery store, restaurants

Do not share sensitive information to those other than
those in “need to know”
– Background, home conditions, family history that could
damage reputation
– If share outside need to know loop will be hard to prove a
defense
– Student who can show now being held in lower esteem,
ridiculed or shunned by others, CAN WIN!
Ch 6, Schl Pers Liab
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What is Defamation?

SLANDER: oral defamation
 LIBEL: written defamation
 Four categories considered defamation on
their own merits:
– Loathsome disease (leprosy, STD, AIDS)
– Unchastity in a woman in Wash (still true now?
How can you find out?)
– Notorious Criminal behavior (not “xx is a crook”)
– Injury in trade, business or profession (job incompetency)
Ch 6, Schl Pers Liab
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What is Defamation?
You are sitting an a staff lounge and
hear a teacher state that he has heard
Susie, a 13 year old student, is having
sex with her uncle. The teacher states
further that Susie probably asks for “it”
because she dresses so provocatively.
 What is your reaction, what duty do you
have?

Ch 6, Schl Pers Liab
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What is Infliction of Mental Distress?

Must exceed the “bounds of human
decency”

Construed to create serious mental
anguish distress

Is intentional
Ch 6, Schl Pers Liab
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What is Infliction of Mental Distress?

Very hard to prove, but
– Discipline that embarrasses, ridicules, humiliates a student
in front of peers probably qualifies
• Examples: walk around building with books on head,
standing for a long time with foot raised, facing into
corner of room, placing student in closet-– Infliction of mental distress??,
• Others?

Must show respect for students even when
disciplining
Ch 6, Schl Pers Liab
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What is Infliction of Mental Distress?

Scenarios-Intentional Infliction of Mental Distress?
– A staff member speaks harshly to a 10 year student.
– A staff member tells a student he will keep her after school if she
doesn’t “shut her trap”
– A staff member makes a student wear his gum on his nose for 2
hours during class time
– Fed up with his shouting out answers and not raising his hand, a
teacher places a student in “time out” (an isolated space in the
classroom) for 10 minutes, for 2 hours (class periods), for an entire
day, for a week.
Ch 6, Schl Pers Liab
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What is Infliction of Mental Distress?
– For punching another student for the 3rd time a
student is kept in the principal’s office during
breaks (recess, lunch hour) for one week
– The class clown is sent outside the classroom and
told to spend 10 minutes entertaining the rest of
the class through the outside window. He seems
to enjoy the attention
– Others?
Ch 6, Schl Pers Liab
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What is False Imprisonment?

Illegally detaining a person/student
– Must have reasonable basis
– Must be for a reasonable time

Can legally detain a student & prevent participation in
– Playground activities, recess, other extra-curricular school
activities, after school if proper arrangements are made for
transportation
– Lunch breaks?
Ch 6, Schl Pers Liab
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What is False Imprisonment?

Scenario: You notice a physical education teacher
blocking the entry from the girl’s locker room while he
“teases” the middle school female students trying to
enter the gym.
 The girls are obviously frustrated and are not
responding well to his actions and tell him they need
to get to class on time. He does not move and
continues to “tease” the girls. Is this false
imprisonment?
 Other examples?
Ch 6, Schl Pers Liab
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What is Trespassing on
Personal Property?

Confiscating, interfering with student’s personal
property without proper authority
– Happens when take personal property during the school day
(violation of school rules, can be disruptive, cause harm to
student or others)
– Can confiscate, but not keep
• Dangerous item? Contact parent, return to parent, do not give
back to student
– Cannot damage, forget to give back
Ch 6, Schl Pers Liab
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What is an Unintentional Tort?

Tort Violation-Negligence

First, there must be a legally imposed DUTY to exercise due care (duty
to supervise, warn, notify, provide safe school free of dangerous
conditions)
– That of a reasonable professional/staff member (same credential,
same geographic areas-Wa State) under same or similar
circumstances to protect foreseeable plaintiffs from unreasonable
risk of harm
 Second, a BREACH/failure of that duty
 Third, CAUSATION/Proximate Cause (breach caused harm-causal
relationship to actual injury)
 Fourth, resulting DAMAGES
Ch 6, Schl Pers Liab
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Standard of Reasonable Care?

Basic, fundamental question is “Could the acts
leading to injury/death been avoided if…
– School Officials exercised reasonable care?
• Did they know, or should they have known of the potential
harmful situation before it occurred?
• Did they promptly investigate to determine extent of potential
danger (imminent?)
• Did they report the potential danger to school officials?
– Higher standard for younger children, chemistry teacher,
physical education teacher.
– Students do not possesses same level of maturity, insight,
caution, and knowledge as an adult
Ch 6, Schl Pers Liab
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Breach of Duty?



Different job responsibilities have differing levels of
supervision
Question is--did conduct of school staff meet the
standard of care of a prudent person in the same or
similar conditions?
Expected to take prudent steps, based on duty to
supervise students, when reasonably foreseeable
harm may come to students.
Ch 6, Schl Pers Liab
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Proximate Cause?

Has to be evidence to make a legal link DIRECTLY to the failure
of the school staff member to act prudently in a given situation
– Courts ask, “Was actual injury based on a school
staff members behavior or lack thereof?
– Example-teacher leaves classroom unsupervised,
injury occurs-preventable if teacher had been
present? Did teacher have established classroom
rules?
– No set rules, subject to court interpretation
(judge/jury)

Other situations?
Ch 6, Schl Pers Liab
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Injury?

Has to be provable injury, or no liability
 Injury has to be due to acts committed or a
failure to act prudently in a given situation
 Plaintiff must show compensatory damages
 If willful, wanton negligence = maybe punitive
damages--Meaning
Ch 6, Schl Pers Liab
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Defenses for Negligence

Comparative Fault in Washington (degree of
negligence)
 If the plaintiff claiming injury can be shown to
share some of the fault, then damages
awarded will be lessened by the percentage
of plaintiff’s fault
 Equal contribution to injury then no damages
– Some cases find child under 7 cannot be assigned
fault, 7+ to 14 presumption of no fault, 14+ may be
assigned fault, depending on circumstances

Meaning?
Ch 6, Schl Pers Liab
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Negligence Scenario



A 14 year old student in your district exited his school
bus at his regular stop. He chose to go to the family
mailbox before crossing the road and the bus driver
drove the bus to the next stop.
As the student attempted to cross the road after
picking up the mail, he was truck by a speeding
logging truck.
Where will the fault be assigned?
Ch 6, Schl Pers Liab
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Negligence Scenario
Wash school bus drivers are to be
certain students safely cross the road
before the stop sign is returned to the
side of the bus and the bus continues
down the road.
 Both bus driver (school district) and
truck driver can be found to share fault

Ch 6, Schl Pers Liab
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Defenses for Negligence

Assumption of Risk when participate willingly in an
activity with risks
– Idea is students assume a element of risk to
• Willingly participate and benefit in activity
– Athletics, pep squads, intramural sports
• Others?

Cannot dismiss school liability if
– Fail to meet the reasonable standard of care based on
• Age, maturity, risk, and nature of risk associated with activity
– Must provide safety equipment, be certain activity area is safe
Ch 6, Schl Pers Liab
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Defenses for Negligence


Immunity (sovereign immunity-king can do no wrong)
Ministerial acts (must perform)
– Transportation, open board meetings, attendance, reporting
suspected child abuse, developing a school calendar

Discretionary acts (do not have to perform)
– Field days, allowing outside groups to use school facilities
before/after school hours, field trips, deciding types of
extracurricular activities

Others?
Ch 6, Schl Pers Liab
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What are Supervisory Duties?

Must provide reasonable supervision when
students under care of school authorities
– Reasonableness is decided in court by judge/jury
(Question of fact)

Each situation is different
– Nature of activity, age/number of students
involved, quality and quantity of supervision

Younger students-more supervision
Ch 6, Schl Pers Liab
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What are Supervisory Duties?

Before School
– Some form for students arriving on school grounds before
school day officially begins
• Problems, issues are foreseeable if no supervision is provided
– No expectation of a guarantee students will not be harmed at
some time

Best Practice: Inform parents school personnel not
available before a certain, defined time.
Ch 6, Schl Pers Liab
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What are Supervisory Duties?

Scenario
– The school has informed parents, in all home languages,
that school personnel are not available before 7:15 AM to
supervise students arriving earlier.
– Parents are discouraged from bringing their students before
7:15 AM.
– Is the school relieved of any liability for students who arrive
before 7:15 AM?
Ch 6, Schl Pers Liab
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What are Supervisory Duties?

Maybe or maybe not. Court will look to several
factors
– It is not students who bear the burden of their presence, because
parents have dropped them off
– Are there periodic supervisory checks?
– Have there been previous problems?
• Records of assaults by non-students-then must provide intense
supervision
• Heavy traffic near the school-then must provide some level of
supervision
• Students violating safety rules-may be a comparative fault
situation if students mature enough to understand
consequences of violating safety rules
Ch 6, Schl Pers Liab
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What are Supervisory Duties?
Scenario: Your school’s day does not begin
until 8:30 AM. The building principal uses a
periodic supervision technique by walking
around campus including a “walk-by” the food
service delivery area in back of the building
 Jose, a nine year old, was shot in eye with a
paper clip by an older, non-student, Peter, at
about 8:05 AM while the principal had walked
around the corner of the building

Ch 6, Schl Pers Liab
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What are Supervisory Duties?


Jose’s parents sue the school, claiming the school
violated its standard of care by not supervising
students before school. The claim states that a
reasonable, prudent school official knew, or should
have known that Peter was a known bully when he
attended your school and knew or should have
known that Peter was on campus many times before
school and before Jose was hurt
The principal admits he knows about Peter’s previous
pranks, but did not know Peter was on campus on
the day that Jose was hurt. (What is a much better
approach?)
Ch 6, Schl Pers Liab
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What are Supervisory Duties?

Court will likely find that, because the principal knew students
arrived early and a former student bully often came on campus,
it was foreseeable an injury could occur, he needed to provide
for more intense supervision

In the real-life case (Titus v. Lindberg) the court also found that
the principal had not notified parents of any rules for earlyarriving students

What is the lesson of this case?
Ch 6, Schl Pers Liab
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What are Supervisory Duties?

Supervision During School
– Courts assume schools are safe places
– In loco parentis means school must
provide reasonable supervision
– Staff have duty to warn students of
consequences of participating in
dangerous behavior
Ch 6, Schl Pers Liab
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What are Supervisory Duties?

Supervision After School
– If no assigned duties, then no liability
– Parents need to be informed, include information in student
handbook, place in school policy
• Must pick up students promptly after school is out
• Keep students home after dark
• Others?
– Generally no duty to provide extensive supervision beyond a
reasonable period of time
– Enrolled student? Must take reasonable steps to protect
them from harm
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What are Supervisory Duties?

Scenario
– A 3rd grade teacher in your district has asked her
students to clean up the classroom after school.
She leaves the room for a few minutes, leaving
the students unsupervised. One of the students
rummages through her desk, finds a sharp edged
letter opener and subsequently injures another
student with the letter opener.
– Is the teacher liable?
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What are Supervisory Duties?
May or may not be liable. In Richard v.
St. Landry Parish School Board (1977)
AN OLD CASE, the teacher was found
not to be liable because she had
forbidden students to go near her desk.
The court held for the teacher because
the students disobeyed her rule.
 What are other possible holdings?

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What are Supervisory Duties?

Field trips
– Mere extension of normal school activities
– But students in unfamiliar places, therefore a need
for greater supervision
– Standard of care depends on age, maturity of the
students
– Best Practice-acceptable to use parent
chaperones, but be sure to train them how to
supervise. Need to know nature of activity, about
problem students, etc.
Ch 6, Schl Pers Liab
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What are Supervisory Duties?


Scenario: One hundred and ten eighth grade
students in your school district took field trip to a local
court. During a break, under the supervision of
teachers and chaperones, the students crossed a
street to eat lunch at a local restaurant
Three of the students finished their lunch early and
asked permission to cross the street to meet with the
a teacher waiting for them in the courthouse. The
teacher in charge at the restaurant gave them
permission and warned them to be careful while
crossing the street
Ch 6, Schl Pers Liab
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What are Supervisory Duties?

Before crossing the street one student looked both
ways and moved out into the street and was struck
by a car
 Is the school district liable?
 In the case, King v. Kartenson (1986), the Tennessee
Court of Appeals found that the injured student was
13, had no hearing or vision problems and the street
was not considered dangerous
 What might happen in your area?
Ch 6, Schl Pers Liab
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How do You Avoid Liability? (Essex)

Be aware of the standard of care for your position
and those whom you serve
 Ensure that the facility and grounds where you work
is as safe as possible for all who come to use it
 If expected to foresee a danger, then be vigilant and
identify dangers
 You have a legal duty to inspect, supervise, and
provide a safe environment for students and staff
Ch 6, Schl Pers Liab
Hardison/Wheaton HU 11-12
65
How do You Avoid Liability? (Essex)

If you are reasonable and prudent you will likely
survive a court’s scrutiny

School grounds should be accessible (H/C) and safe
for authorized visitors

Refrain from assault and battery (no corporal
punishment in Wash)
Ch 6, Schl Pers Liab
Hardison/Wheaton HU 11-12
66
How do You Avoid Liability? (Essex)



Keep student’s personal information confidential,
share only with those in “need to know” loop.
Remember to operate in good faith with no intent to
harm
Do not coerce a student to use equipment or
participate in an activity if they express serious
apprehension. If student is injured, liability may result
Other suggestions? List from your experience, from
the book.
Ch 6, Schl Pers Liab
Hardison/Wheaton HU 11-12
67