SICK DAZE: ARE YOU LIABLE? 28 net assets • january/february 2014
Understanding and minimizing your school’s negligence liability for student injuries and illnesses at school. BY CONSTANCE H. BAKER, ESQ. AND CELIA E. LANDGREN, ESQ. y practices and safeguards to prevent ou are the head of an In light of these striking statistics, independent high school. injuries to the extent reasonably schools should assess their readiness to possible, and respond to the injuries or after a long week of work, reduce the risks presented by student you receive a call at 9 illnesses that do occur. injuries and illnesses and respond While a school or its personnel p.m. on a friday from reasonably to them. your school’s athletic director. the may be subject to a legal claim when a student falls ill or is injured at school, quarterback of the school’s football team Negligence Theory of was injured during the game that night, whether they will be found liable for the Liability resulting damages depends on a host of and is on his way to the hospital with a + possible concussion. factors, including the reasonableness of Probably the most common legal their conduct. now, imagine that you are a second claim asserted against schools grade teacher at an independent and school offjcials arising from primary school. One of your students student injuries or illness is the tort Scope of the Problem with a known peanut allergy eats a piece claim of negligence. a tort is a civil + of candy containing peanut oil and goes We have all heard accounts wrong that results in an injury or other into anaphylactic shock. you administer of incidents such as those harm that constitutes the basis for a the student’s prescribed epinephrine, described above. but what is the legal claim by the injured party against as you were trained to do in this type of true scope of the student accident and the wrongdoer. emergency situation. injury problem in our schools? a claim for negligence may arise In each of these incidents, the according to safe Kids Worldwide, where a plaintiff demonstrates that (1) educator’s immediate concern is to help an estimated 2.2 million children ages the defendant owed the plaintiff a legal the student get appropriate medical 14 and under sustain school-related duty; (2) the defendant breached that attention so that his or her injury or injuries each year, and one in 14 duty; (3) the plaintiff suffered an injury; illness is appropriately treated. However, students suffers a medically-attended and (4) the defendant’s breach was the the potential fallout from such an or temporarily disabling injury at proximate cause of the plaintiff’s injury. incident could bring a parade of lawsuits, school annually. these statistics are not Courts across the country have held lawyers and legal bills in the event that surprising since safe Kids Worldwide that schools and school personnel the student’s parents bring legal action reports that school-age children in the are required to exercise ordinary care against the school or its administrators, united states spend almost one quarter to prevent harm to students from teachers, coaches or other personnel. of their waking hours at school or on foreseeable hazards. this is known as While a lawsuit may be fjled against school property. the “duty to protect.” them, the school and its personnel the national Institutes of Health Practically speaking, this means normally will not be liable for damages reports that chronic illnesses affect that schools, administrators, teachers that arise. schools are not required to at least 10–15 percent of american and other school personnel have a prevent all injuries or illnesses from children. Common chronic conditions responsibility to anticipate potential happening. among school-age children include dangers to students, and to take Instead, they are expected to asthma, allergies, diabetes and epilepsy, reasonable steps to reduce those anticipate those incidents that are all of which require comprehensive and dangers. schools are not required foreseeable, institute appropriate coordinated care at home and at school. to prevent all injuries and other WWW.nbOa.net 29
whether the injury could have been foreseen and prevented by the school or school personnel exercising a standard of reasonable care. the student must have sustained an actual physical or mental injury in order to prevail on a negligence claim. even if it is established that the school or school personnel owed a duty of care to the student and breached that duty, a negligence claim will not be successful unless the student proves that he or she sustained an actual injury that was proximately caused by the breached duty. schools may be directly subject to the type of negligence claim described above. However, they may also be subject to a claim of vicarious liability stemming from the negligence of a school employee under the doctrine of respondeat superior. Respondeat superior holds employers, including schools, liable for the negli- gent acts or omissions of their employ- ees in the course of employment. as such, the parents of injured students may be able to seek damages from the accidents from occurring. Instead, the Protection for Good Samaritans school’s obligation is limited to acting school that employs the teacher, as well S chool personnel may wonder whether as the employee himself or herself. reasonably to reduce harm posed by state good samaritan laws provide those hazards that are foreseeable. While a school may be sued on a them with legal protection for giving negligence claim, it is unlikely that Where a school or its personnel fail assistance to students who are injured or ill. to exercise reasonable care in protecting it will be found liable for injuries or good samaritan laws were initially accidents, unless the school or its the safety and well-being of students, it intended to encourage medical personnel to may be found to have breached its duty. personnel were found to have breached provide emergency assistance at roadside their duty of care to the student, a court will assess the conduct of the accident scenes by providing them with im- munity from civil and criminal liability. school and its personnel based on how and such breach was found to be the some states have expanded the scope proximate cause of the injury that a reasonable person would have acted of these laws to protect the actions of under similar circumstances. resulted. any individual who provides emergency several factors will be considered assistance to someone in peril. the scope of when determining how a reasonable these laws varies greatly by state. Injuries in the Classroom person would have acted under similar in the context of school personnel, + circumstances, including his or her students spend most of their states are increasingly passing legislation that grants some measure of immunity to training and experience, the student’s day in the classroom, so it’s school nurses and/or school employees that age and special needs, the environment not surprising that injuries administer epinephrine to students with in which the injury occurred, and the occurring in the classroom are common. severe allergic reactions. proximity of the teacher in charge, schools should consider the following however, these laws also vary by state, among others. potential risk areas when acting in and may require that the school employee Where the duty of care is breached, accordance with their duty to protect have certain training or be supervised by a a court will then assess whether there students in the classroom setting: school nurse in order to qualify for immunity. Is the student-to-teacher ratio is a connection, known as proximate schools should consult with their legal counsel to determine the good samaritan cause, between the breach of the duty suffjcient so that the teacher can laws that may apply in their states. and the student’s injury that results from adequately supervise the students? Has the school established supervi- it. specifjcally, a court will determine 30 net assets • january/february 2014
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