Tort of NegligenceTeacher negligence is a risk that needs to be taken seriously by all adults in the educational setting. It is critical that educational leaders are consistently and correctly educati

Chapter 10 Tort Liability and Risk Management

Thomas J. Graca*

* Thomas J. Graca (J.D., Southern Methodist University; Ed.D., Texas A&M University at Commerce) is Vice President, Planning and Development, Eastfield College, Dallas County Community College District, Mesquite, TX

Introduction

This chapter addresses tort liability and risk management in the public school context. Although the particular context of public education creates particular challenges and issues, tort law in the education context is much like tort law in any other context. The concern of tort law is redressing injuries caused by another—either intentionally or merely negligently. The central principles of tort law are not controversial, or really even in any dispute. When a person injures another, the injured person should be compensated. When someone damages the property of another, the owner of the property should be compensated. The only controversies are the measure of compensation, and the types of injuries or damages that should be compensable.

This chapter is different from many of the other chapters in this text in that this chapter has less of an emphasis on seminal cases. In many of the other areas of education law, there are particular influential cases with which a knowledgeable educator should be familiar. For example, Brown v. Board, Tinker v. Des Moines, or Lemon v. Kurtzman are part of the foundation of most school law courses. Of course, there are many significant cases in the law of torts and even in the law of torts as it relates to schools in particular. However, the significance of these cases is that they represent (usually slight) shifts in the law. The focus of this chapter is not on these slight shifts, but instead on introducing tort law in the education context as a foundation for further study. If you desire deeper study after reading this chapter, you should next consult a text that focuses on your state in particular.

Focus Questions

1. Is tort liability in educational settings a blessing or a curse?

2. How can school leaders better manage the risk of tort liability in their schools?

3. How can school leaders better educate teachers and other education professionals about issues of tort liability and risk management?

4. In what ways do a school’s ongoing relationships with parents affect tort liability?

Key Terms

1. Assumption of risk

2. Breach of duty

3. Cause-in-fact

4. Comparative negligence

5. Contributory negligence

6. Duty of care

7. Foreseeability

8. Liability waivers

9. Negligence

10. Proximate causation

11. Risk management

12. Sovereign immunity

13. Statutory immunity

14. Tort

Case Study Girl Fight

Russellville Middle School Principal Paige Littleton was well aware of the ongoing feud between eighth-graders Buffy McGuire and Kathy Harris. Kathy and her group of friends consistently ostracized Buffy, excluded her from conversations, and, as one teacher said, “did their best to make life miserable for Buffy.” Buffy’s mother had complained numerous times to Principal Littleton about Kathy’s bullying and mistreatment of her daughter. Paige had spoken with both girls, referred them to the counselor, and made every effort to keep peace between the girls. However, three days before spring break, Buffy and Kathy began fighting between third and fourth period in a hidden alcove out of sight from teachers in the hallway. At some point in the fight Kathy used a 5-inch pocketknife, and Buffy was seriously injured. Buffy was hospitalized for her injuries and “trauma.” Principal Littleton learned later the same day that Buffy’s parents had retained legal counsel.

Leadership Perspectives

School safety has evolved into one of the most important duties facing campus and district leaders regardless of grade level, school size, or location. This duty is reflected in ISLLC Standard 3C, which calls for school leaders who promote and protect the welfare and safety of students and staff. However, it is simply impossible to protect students and teachers from all potential harm. Why would the fight between two eighth-grade girls at Russellville Middle School be different? Principal Littleton and at least a few teachers were aware of the conflict between Buffy and Kathy and that several “blind spots” existed that made hallway supervision difficult. However, Principal Littleton did not know that Buffy and Kathy were going to fight that day, or that Kathy had a small knife. Because Buffy was hospitalized, one can assume a police report was filed. Tomorrow’s headline in the Russellville Tattler may read “Student Knifed at Russellville Middle School. Principal says she ‘Didn’t Know of Danger.’” Yet Principal Littleton did know of the ongoing feud. She had been informed by Buffy’s mother of bullying by Kathy and her friends, and at least one teacher had knowledge of the ongoing ostracism and exclusion of Buffy. So, can Buffy sue the school district? Certainly—anyone can sue at just about any time.

ISLLC Standard 3C

Kathy has likely committed the intentional tort of battery (and possibly a crime). It is conceivable that Buffy and her parents could sue Kathy and her parents. It is also conceivable that Buffy could win a judgment against Kathy. Kathy’s parents may have few assets, and winning a lawsuit means nothing if you can get no money from the defendants. So, Buffy most likely will not waste her time suing Kathy. Buffy and her parents, however, definitely want to get some money out of someone to pay for her medical bills, pain, suffering, perhaps lost wages, and likely some other losses as well. Who else is there to sue? The district, of course.

Can Buffy recover from the school or district? Do schools and districts have any liability for injuries suffered by one student at the hands of another? If school districts do have liability for student-on-student violence, the relevant tort would likely be negligence. There is an array of state and federal district court decisions regarding this very question. And the decisions are not consistent. Moreover, student-on-student violence invokes a variety of legal theories of recovery against school systems—many outside of the law of tort. However, we limit our discussion here to the negligence theory.

The concept of tort liability is one way society ensures that local school boards affirmatively meet their responsibility to provide policy designed to promote security within the school community. For example, in the case study “Girl Fight,” Principal Littleton met with the two girls, referred them to the school counselor, and was presumably aware of the difficulty in supervising students posed by the school facility. On a larger scale, Principal Littleton and the Russellville Board of Education would need to consider not only the hallways and alcoves of Russellville Middle School, but other areas of the school facilities such as the parking lot, playgrounds, and classrooms when making policy to promote utility of the school community. One way to meet this responsibility is risk management. This chapter attempts to present tort liability and risk management within the utilitarian concepts of security and equity.

Isllc Standard 3C

The Law of Torts

A tort is a civil wrong that results in personal injury or property damage, the compensation for which serves sound social policy. The word tort is derived from a French word meaning “twisted” or simply “wrong.” A tort is “twisted” because one person or institution has upset (“twisted”) social equity by causing personal injury to another or damaging the economic interests of another. Tort law in the United States is generally a matter of state common law, though it must be noted that there are exceptions. There are state statutes, federal statutes, and federal common law related to torts. However, most tort law is derived and defined as a matter of state common law. Non-etheless, because nearly every American jurisdiction bases its tort laws on the common law of England, most U.S. jurisdictions apply very similar analyses to similar tort cases. School administrators should take special care in consulting the law of their own state in analyzing a tort or would-be tort case.

As common law, tort law is generally court-made law, rather than legislature-made (statutory) law. Whereas statutory law evolves when legislatures pass bills into law (bills that are usually signed by the chief executive), common law evolves as courts and judges are confronted with (1) new issues legally distinguishable from existing law, (2) changes in culture (e.g., those created by emerging technologies), or (3) evolving social policy considerations. The common law tradition, unique to the United Kingdom and the former British colonies (such as the United States), recognizes that no system of prewritten “rules” can be justly applied to every potential situation. Therefore, as new or unique tort cases come along, judges write opinions that compare and contrast the facts with similar previously decided cases. The judge must then decide which existing law is most appropriate to the case. This decision is added to the common law. Reported judicial decisions are law. As illustrated in Chapter 2, the common law evolves with every reported court case. As each case is decided, it sets a precedent for future cases in future courts in the jurisdiction.

Schools, school systems, individual teachers, and individual administrators could all be either plaintiffs or defendants in tort cases. It is, however, more common for educational institutions and educators to be defendants—the party accused of committing a tort (a would-be “tortfeasor”)—in tort cases. Educators and educational institutions are more likely to be defendants for two reasons. First, higher expectations (“standards of care”) are applied to educators and educational institutions than are applied to students, parents, and other educational stakeholders. As individual professionals and professional systems, educators and educational systems have more expected of them. Second, educators and educational systems are more likely than the general public to have financial resources. A plaintiff might be happy to win a tort case, but the win is made far less satisfying if the defendant has no assets that a court might seize to satisfy the judgment.

Negligence

By far, the most common tort is the tort of negligence. In common law, definitions are less significant than in statutory, administrative, or constitutional law. Non-etheless, the definition or description posited by renowned Supreme Court Justice Oliver Wendell Holmes in Schlemmer v. Buffalo R. & P. R. Co. (1907) is instructive:

Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result.

More significant than any definition or description of negligence are the elements of negligence. Although the specific language used to describe the elements and the specific application of the elements varies among American jurisdictions, there is definitely a common pattern. It can be said that generally there are five elements to the tort of negligence: (1) existence of a duty, (2) breach of the duty, (3) cause-in-fact causation, (4) proximate causation, and (5) damages. The elements of negligence are conjunctive, meaning that all five must be satisfied to have the tort of negligence. In explaining the five elements, we will refer to the opening case study “Girl Fight.”

Duty

The first element of negligence is duty. Humans generally have very few affirmative duties to others. Most of our duties to other human beings are negative duties. The most common are the duties not to engage in behaviors that would cause bodily harm to others or damage to the economic interests (e.g., property) of others. We generally do not have duties to take actions to prevent injuries to others or to prevent damage to others’ economic interests. If one is walking down a street and sees that a piano is about to fall out of a window on someone standing beneath, one does not have a legal duty to warn the person standing beneath. Of course, right-thinking people would likely contend that someone who sees the piano has a social or ethical duty to warn, but there would not be negative legal consequences under the common law of tort for failing to do so.

However, there are many examples of “special relationships” that give rise to special (usually affirmative) duties. The relationship between educators or educational institutions and their students is one such special relationship. Educators and educational systems stand in loco parentis (from the Latin for “in the place of the parent”) in relation to the unemancipated minors in their charge. Teachers and administrators owe a great many legal duties to their students. Among these duties is the duty to maintain a reasonably safe environment in which learning can take place. Whether such a duty exists is a matter of state law, but it is very likely that in many states would find such a duty. Regardless, the affirmative duty to provide and maintain a reasonably safe and efficient learning environment is reflected in ISLLC Standard 3C. In the case study “Girl Fight,” there is no question that Principal Littleton had an affirmative duty of care, because the fight between Buffy and Kathy happened during the school day.

ISLLC Standard 3C

Although educators and educational systems do not have a duty to “shelter a growing child from every possible danger” (Gathwright v. Lincoln Insurance Co., 1985), they do have a duty to take reasonable steps to protect the children in their charge. This duty arises commonly when a child–student suffers an illness or injury, or is in danger of suffering an illness or injury during the school day. Educational professionals have a duty to aid children–students who are injured or in danger of suffering an illness or injury.

Breach

The second element of the tort of negligence is breach. The element of breach of duty can be satisfied when the would-be tortfeasor fails to live up to her identified duty. The fact of the matter is that when someone or some property is damaged, it is not always someone else’s (or even anyone’s) fault. In most tort cases, the breach is an action, though it could possibly be an omission.

In order to be held liable for a tort, a defendant must have taken some action or failed to fulfill some obligation related to the complained-of injury. A teacher/administrator very likely has a duty to provide aid to a student who is in danger of being injured. Imagine that a teacher becomes aware of a student in danger, and that the teacher does, in fact, provide aid to the best of his ability. Say, for example, that teacher directs a student to call the local emergency number, directs another student to go get the school nurse, and then personally intervenes and comes to the aid of the student. The teacher has likely not breached a duty. If the teacher has not breached a duty, he may not be held liable for the tort of negligence. Even if the child is injured or, in the worst case, dies, the teacher who fulfilled his duty to aid the student is not liable—assuming he did not breach some other duty—because he did not fail to fulfill duty.

It is only when the teacher fails to fulfill a duty that the breach element is satisfied. The breach occurs when the teacher fails to exercise the care that a “reasonably prudent” teacher in the same situation would exercise. The breach could be either malicious or merely negligent. Examples of malicious breaches might be if the teacher sees Buffy and Kathy fighting, but simply decides that he doesn’t want to get involved, or decides that he doesn’t really like Buffy (doesn’t care if she is injured by Kathy). But most breaches are not malicious; they are merely negligent. Imagine that a student who sees the fight start seeks the aid of a teacher by calling for help and the teacher thinks that the student is “crying wolf,” so he fails to aid the student. Would this be a breach? Maybe. What if the teacher thinks the student is just playing around? Would this be a breach? Maybe. What if, rather than coming to the aid of Buffy, the teacher only tells the students to “knock it off,” returns to his classroom, and calls for an administrator. Would this be a breach? Maybe.

You probably find those “maybe” answers less than satisfying. Those actions are breaches if it is determined that a “reasonably prudent” teacher would have exercised better care. Who decides what a reasonably prudent teacher would do? Finders-of-fact (usually juries) get to decide—if the case gets to court. The inquiry into whether particular actions or omissions amount to breach is profoundly fact-intensive. It depends on the specific facts of each particular situation. But the standard is usually the same—the reasonably prudent person, the reasonably prudent teacher, the reasonably prudent principal, the reasonably prudent counselor, the reasonably prudent superintendent, and so forth.

Whether the duty was breached—in other words, whether the school violated the requisite standard of care—is a deeply fact-intensive inquiry. Of course, teachers cannot possibly protect students from every possible danger. So, does this would-be “breach” violate the standard of care expected of a reasonably prudent teacher? Given the many peculiarities of this situation, this will likely be a difficult question for a jury to answer. Anyone who has ever worked in a school knows that even if administrators and teachers do everything correctly, fights still happen. So, the fact that there was a fight does not necessarily mean that the standard of care was violated. Whether the duty was breached here will depend on a number of factors. Was the hallway well supervised? Did the administration have any reason to believe that a fight would happen? What did faculty and administrators do when they learned of the fight?

Cause-in-Fact Causation

The third element of the tort of negligence is cause-in-fact causation. This is also sometimes called “but-for” causation. In order to be liable for the tort of negligence, the action or omission determined to amount to a breach of a duty must be a cause-in-fact of the injury suffered. In other words, the injured person would not have suffered the injury but for the breach. The breach must have been in the chain of events that led directly to the injury. This is a very low standard. The breach must be such that, if it did not happen, the injury complained of would not have happened.

Assuming for the sake of argument that the teacher did breach a duty, the next issue is whether that breach was a cause-in-fact of the complained-of injuries. Our hypothetical fight in the hallway provides some examples. Imagine that a jury determines that our teacher—a male coach—breached a duty to Buffy when he merely told the girls to “knock it off” and did not try to stop the fight. The jury determines that if the coach had intervened, Buffy likely would not have been seriously injured. They have determined that “but for the teacher’s breach, Buffy would not have been seriously injured.”

But what if the jury decides that Buffy would have been injured even if the teacher breached his duty to make a reasonable effort to separate the girls? Then it cannot be said that “but for the teacher’s breach, the student would not have been injured.” If the jury decides that Buffy would have been injured either way—regardless of the teacher’s breach—then the breach is not a cause-in-fact of her injuries.

Even breaches that are very minor or in the distant past could potentially be causes-in-fact of an injury. The principal limitation is chronology. A breach that occurs after the injury is complete can never be a cause-in-fact of the injury. Go back to our teacher who disliked Buffy and gave her no help. Imagine if, when the teacher learned of the incident, Buffy was already seriously injured. The teacher’s breach would then not be a cause-in-fact of Buffy’s injuries, and the teacher could not be held liable for negligence. (I hope the school or school district would take employment action, but the teacher was not negligent—as a matter of law—in her injury.) Although a breach that comes after an injury is complete can never be a cause-in-fact of the injury, not all breaches that come before the injury are necessarily causes-in-fact. Remember the logical fallacy post hoc, ergo propter hoc. Simply because A precedes B, A is not necessarily a cause of B. Even serious breaches of significant duties that precede an injury are not necessarily causes-in-fact of the injury.

Proximate Causation

It is because the standard for cause-in-fact causation is so low that proximate causation is an additional element to the tort of negligence. If cause-in-fact causation is “but-for” causation (a relatively simple matter of logic), then proximate causation is “legal” causation (a very complex matter of social mores and public policy). Historically, there has been great diversity among the American jurisdictions about proximate causation. For the most part, this diversity has evaporated over the past half century. Proximate causation has been reduced to a single idea—foreseeability.

For most American jurisdictions, the test of proximate causation is little more or less than whether the injury should have been foreseeable to the breacher at the time of the breach. Note that the language of that previous sentence again seeks (to the extent possible) an objective answer—“should have been.” It does not ask whether the injury was actually foreseen by the would-be tortfeasor. It asks whether a reasonable person, teacher, or principal would have foreseen the injury. This is another fact-intensive inquiry—the determination of which will be made by the finder-of-fact in a tort case (usually a jury).

So, let us continue to assume arguendo that our teacher had a duty to attempt to separate the fighting girls, that the teacher breached the duty, and that the breach was a cause-in-fact of the injuries suffered by Buffy. Would a reasonably prudent teacher have foreseen the injuries? Probably. A reasonably prudent teacher would very likely have foreseen that two students fighting would be likely to sustain injuries without some intervention. Right? Or would a reasonably prudent teacher believe that two young healthy girls would not be able to seriously injure one another? It is probably safe to say that most juries would find the injuries foreseeable—but probably not every jury. This is both the genius of the jury system and a challenge facing those who attempt to predict the outcomes of negligence cases.

One can argue that injuries are easily foreseeable when schools fail to fulfill their duty to maintain a safe environment. One can also argue that holding school districts responsible for the malicious actions of students is not sound social policy. If, for example, Buffy and Kathy had no previous history of violence and school officials were unaware of any problems between the young women, then courts would tend to assume that Kathy’s actions were not foreseeable (see Dadich v. Syosset High School, 2000, and Kennedy v. Seaford, 1998, for example). In this particular case, however, Principal Littleton knew of the animosity between the two girls, teachers had remarked that Kathy made every effort to make life miserable for Buffy, and Buffy’s parents had complained to the principal. So, was the fight foreseeable? Probably. But, was it foreseeable that Kathy would seriously injure Buffy with a weapon? Maybe not.

Damages

The fifth and final element of the tort of negligence is damages. Damages are the physical or property injuries complained of. Even if the first four elements are met, there is no negligence unless there is a cognizable injury. The goal in calculating damages is to compensate victims for their losses. Damages associated with physical injuries tend to be things such as medical bills, pain and suffering, and lost wages (if the victim is employed). When the physical injuries are especially serious (e.g., in the case of death), damages can increase very rapidly, including things such as loss of future wages, loss of companionship, emotional distress, and even funeral expenses—over and above the damages already described. In exceptional cases, additional “special” damages could be appropriate as well. In the case of property damages, damages tend to be cost of repairing, refurbishing, or replacing the property damaged. Of course, in exceptional cases, additional “special” damages could be appropriate.

This fifth element is both a prerequisite to judgment and the measure that will be used to determine the amount of a judgment. If there are not any cognizable damages, there is no negligence. As we consider our case study, damages are obvious here. Physical injury, suffering, pain, lost wages, and so forth are all reasonable and measurable damages. Buffy has a couple of types of damages. Buffy experienced physical injury. She certainly incurred medical expenses and might also have experienced pain and suffering. Whereas the medical expenses will be easily calculable, a jury will potentially have greater difficulty in calculating the monetary value of Buffy’s pain and suffering.

If there are cognizable damages (and the first four elements are met), the calculation of the damages will also serve as the basis for the amount of a judgment that a court will enter. In terms of recovery, the damages are almost always exclusively monetary. Many tort victims desire to recover damages other than money—often orders requiring the tortfeasor to remedy the cause of the injury. These types of

Table 10-1 Elements of the Tort of Negligence

damages are nearly always denied. However, it is worth noting that most negligence cases will not even get this far—or even as far as the courthouse steps. Most negligence cases are settled between the parties, and actual litigation is merely a threat that plaintiffs use to spur settlement. At the settlement stage, using the “extramonetary” damages just described is an excellent strategy for both educational professionals and school systems. This is usually the biggest question mark in a negligence case. How will the jury calculate damages? The minimum amount a jury may determine in any negligence case is $1. Historically, the sky has been the upper limit. Multimillion-dollar judgments in death actions—especially those where the victim is a child—are not uncommon. In the past decade, so-called tort reform (discussed again later in this chapter) has attempted to place statutory upper limits (usually called caps) on the amount of negligence damages. The future has yet to write itself in regard to statutory caps.

These five elements of the tort of negligence are summarized in Table 10-1.

Linking to Practice

Do:

• Educate teachers and others responsible for the supervision and safety of students on the five elements of negligence.

• Know state law and school district policy regarding supervision, transportation, and monitoring of students. Educate teachers, coaches, and others on these laws and policies.

• Develop affirmative policies for supervision of students during the school day and at extracurricular events. Educate teachers, coaches, and others on the rationale for these policies.

Defenses to Negligence

Even if a plaintiff is successful in proving all of the five negligence elements, the plaintiff will still have to overcome any of the (so-called “affirmative”) defenses to the tort of negligence. In the educational context, four defenses arise more often than any others: contributory or comparative negligence, assumption of risk, sovereign immunity, and statutory immunity. In other words, even if a court finds that a defendant has committed negligence, the defendant will not be held to answer for negligence if the defendant successfully establishes the applicability of the defense.

Contributory or Comparative Negligence

The first defense is contributory or comparative negligence. Contributory negligence and comparative negligence are mutually exclusive defenses—the applicability of either is dependent on the laws of the particular jurisdiction. The rationale and purpose for each is the same—to limit the ability of a plaintiff to collect from a defendant for negligence in situations where the plaintiff himself was also negligent. So, if the plaintiff shares the blame, then the plaintiff’s ability to recover will be limited.

The contributory negligence theory is not widely available. Where it is available, the contributory negligence approach requires that if a plaintiff is at all negligent, the plaintiff will take nothing. Contributory negligence is an absolute defense. If the defendant is 99% responsible for the injury and the plaintiff is only 1% responsible, the plaintiff still takes nothing. Any negligence at all on the part of the plaintiff is a bar to her recovery. This defense is not available in most cases in most jurisdictions.

The defense that is more likely to be available in your jurisdiction is the defense of comparative negligence. Comparative negligence seeks to proportion financial responsibility based on the percentage of the damages attributable to each party’s negligence. If the plaintiff proves that the defendant had been negligent (duty, breach, cause-in-fact, proximate cause, and damages) and the defendant proves that some conduct on the plaintiff’s part had contributed (cause-in-fact and proximate cause) to the damages, a jury would need to determine the percentages of responsibility. Imagine that a jury had determined that the plaintiff sustained $10,000 of damages, that the defendant was 65% responsible, and that the plaintiff was 35% responsible. In such a case, the judgment a court would likely enter in the plaintiff’s favor would be only $6,500—even though the damages were $10,000. The percentage of the damages attributable to the plaintiff’s conduct is subtracted from the total damages the plaintiff incurred. The exact application of the principle of comparative negligence varies greatly from state to state.

It is not uncommon for a state to use a comparative negligence theory with a contributory negligence wrinkle. They add the wrinkle as the plaintiff’s responsibility reaches 50%. In many jurisdictions, when the plaintiff is either “at least 50%” responsible or “more than 50%” responsible, the contributory negligence wrinkle kicks in, and the plaintiff is completely barred from any recovery. If we reexamine our $10,000 damage finding with this wrinkle, we can see the following. If the defendant is 65% responsible and the plaintiff is 35% responsible, then the plaintiff recovers $6,500. But if the defendant is 35% responsible and the plaintiff is 65% responsible, then the plaintiff recovers $0. If the defendant is 51% responsible, the plaintiff takes $5,100; but if the defendant is only 49% responsible (a difference of only 2%), the plaintiff takes nothing.

In education contexts, recall that schools and education professionals are more likely defendants than plaintiffs. And students and parents are more likely plaintiffs. When defendant schools and defendant educators seek to utilize the contributory or comparative negligence against a plaintiff student, another issue arises. It is more difficult to prove that a child has been negligent than an adult. The proximate causation element (defined primarily as foreseeability) is more difficult to prove against a child. Children are held to a lower standard of care than their adult counterparts. In fact, most jurisdictions prohibit children under the age of 7 (the “age of accountability”) from ever being found negligent. Teachers and administrators in early childhood education, therefore, will almost never be able to assert contributory or comparative negligence against a child–plaintiff. Children between the ages of 7 and 14 are presumed to be incapable of negligence. However, the courts recognize that particular 7- to 14-year-old children are capable of negligent behavior. That is, particular 7- to 14-year-old children do have the cognitive and psychological intelligence to foresee the legal consequences of particular actions. Therefore, it is possible for a plaintiff to overcome the presumption of incapacity with a defense of contributory or comparative negligence against a 7- to 14-year-old child’s negligence case. Adults and children over the age of 14 are presumed capable of negligence. Therefore, most high school teachers and administrators will have the defense of contributory or comparative negligence available to them when a student alleges negligence.

Assumption of Risk

The second common defense to negligence is the defense of assumption of risk. Even if a defendant is liable for the damages associated with negligent behavior, the defendant may assert that the plaintiff assumed the risk of the defendant’s negligence. The defendant will either assert that the plaintiff expressly assumed the risk or that the plaintiff made a conscious choice to assume the risk. Much as in contributory negligence, the context of the schoolhouse creates particular challenges for defendant schools and defendant educators who wish to assert the defense of assumption of risk.

Schools and educators frequently seek to obtain express assumptions of risk from both students and their parents prior to potentially dangerous activities—for example, athletic competitions, travel by motor vehicle, activities off the premises of the school, and other situations that could potentially pose a risk beyond what would commonly be expected in an educational setting. They seek the express assumption of risk through documents called variously liability waivers, hold harmless, consent, indemnity, and other labels. (Each of these labels has a distinct legal effect varying somewhat by jurisdiction—indemnification is a profoundly distinct concept from waiver of liability—but the effect that schools and educators desire with each is the same.) So, do these documents have any legal effect? It depends. No doubt more than one educator has been told that his liability waiver isn’t worth the paper it’s printed on. That’s probably not true. But it’s also not true that simply because one signs a waiver he cannot recover.

It’s probably more likely to be true that a liability waiver signed only by a minor child truly is worthless. A liability waiver is roughly analogous to a contract. In the United States, minors are not liable in the law of contract. Depending on your state, the age of majority is either 17 or 18. A minor cannot enter into a binding contract. Because these liability waivers are either contracts or very closely analogous to contracts, a minor cannot be a party to one.

However, a minor’s parents certainly can be. So, if the child’s parents agree to the waiver, does it have effect? Presumably, yes. However, if the agreement is contrary to public policy, it will have no effect. Because contract (like tort) is primarily a matter of state law, the policy desires of various branches of the state governments—including the courts themselves—come into play. The primary policy consideration is how much responsibility schools and educators should have for protecting the children in their charge. To what extent should schools be responsible for protecting children from themselves and their parents? If a parent signs a particular liability waiver that is not in his child’s best interests, should schools and educators still not be responsible for their actions—because of the special relationship among schools, educators, and children? It is a deeply complex question of social values and competing political theories. School counsels, for the most part, continue to encourage the use of these waivers—and it probably is good advice, regardless of the legal effect the waivers will actually have.

In the case of an implied assumption of risk, the analysis is almost exactly the same. Defendant schools and educators will likely have a very difficult time attempting to assert as a defense that a child herself assumed the risk. Because of children’s minority, they simply cannot assume a risk. It is more likely that their parents can implicitly assume a risk on a child’s behalf. However, in the grand scheme of things, it is still not very likely—because of both the policy considerations discussed earlier and the difficulty in obtaining evidence of a parent’s implied consent.

Sovereign Immunity

For most of human history, each government has had but one sovereign—a monarch under any of dozens of potential titles. The ones most common to western Europe and the United Kingdom (our legal forbear), of course, were queen and king. In the United States, our sovereign is not a queen or king—or any one person for that matter. We—“the people,” as they say—are sovereign. The president of the United States is not our sovereign. The people of the United States collectively are sovereign. Such is the defining characteristic of any form of republicanism or democracy.

Sovereigns are immune to lawsuits in their own courts. There are a number of potential ways of justifying sovereign immunity. The first is simply a matter of practicality: Why would someone with the power of creating law allow you to sue her in her own courts—why would a queen create a system of law that allowed herself to be sued? It is simply a matter of political power. In the United States, we do not have a queen. The United States itself—as established by the people—is the sovereign. The United States has the power of law. Why would it create laws in such a way that we could be sued? Another potential explanation is the utilization of resources and economic policy. If the United States could be sued for any of its negligence, the potential exists for an untoward number of negligence actions (founded or not) to be pending against the United States in the federal courts. This would create an unreasonable burden on the government to fund courts, U.S. attorneys, and the like. A third potential explanation is monetary policy. If the United States prints its own money (which it does), then the judgments against it could unreasonably affect the amount of U.S. dollars in existence, which could have a definite effect on currency valuation. The doctrine has a long history in the United States—going back at least as far as Alexander Hamilton’s The Federalist 81: “It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” There are many other potential explanations and justifications for the immunity of the sovereign (see, for example, Giuttari, 1970).

Our federal system has complicated matters even further. Not only is our nation sovereign, each of the states is also sovereign. That is, the people of each state are collectively sovereign of their state. The United States is a “big sovereign” made up of many “little sovereigns.” In a similar way, each state—as a sovereign—is immune. The governor of Idaho is not sovereign, but Idaho is.

Sovereign immunity is a relevant defense for schools: Most schools are in some way a part of state government, and each state is sovereign. The exact system of organization that a particular state has chosen will determine the exact applicability of the doctrine. However, the doctrine has applicability in all 50 states (though to a profoundly lesser extent in California, Illinois, and Pennsylvania). It protects school systems (districts, boards of education, county school boards, and the like) and individual schools from tort liability. It does not protect individuals (teachers, principals, and superintendents are not sovereigns). Even if a school is negligent, it can generally be said that the school is not responsible for compensating the victims of its negligence. However, the doctrine is not absolute.

The principal limitations on the defense of sovereign immunity are state tort claims acts and public policy considerations. Tort claims acts are statutes enacted in all 50 states that allow the state to be sued. (There is also a Federal Tort Claims Act.) Essentially the tort claims acts define certain situations in which the state consents to being sued in its own courts. These situations generally involve situations where the state is acting like a private citizen or private business—rather than acting like a sovereign.

The most obvious situation in which a school or district is acting like any other business is in reference to its land and buildings. Owning land is not the kind of activity that is reserved nearly exclusively to government. Private citizens own land, and companies own land. Owning land creates duties on the part of land owners to those individuals who are visitors on that land. So, schools and school districts will be less likely to be protected by the doctrine of sovereign immunity in “premises liability” actions. For example, land owners have a duty to properly maintain their premises, a duty to warn visitors of potentially dangerous situations, and the like. Because public school children spend the vast majority of the school day on land and in buildings owned by the school district, this is a significant exception to the doctrine of sovereign immunity.

Public policy considerations are the other significant exception. Even though the doctrine of sovereign immunity might technically apply as a legitimate defense to a district’s or school’s negligence, there could be a countervailing interest that trumps the immunity. Such policy considerations are particularly likely to come into play in the school setting. Because children are among the most vulnerable of our citizens, the state’s policy of desiring safe environments in which children can learn might prevail over the state’s desire to remain immune from lawsuits. This part of the law—where significant, independent policies come into conflict with one another—is one of the places where judges have the most power in our system. There are few bright lines in policy. This is definitely one of the gray areas where educational, social, and political value systems will come into conflict.

Statutory Immunity

You will recall from earlier in this text that statutes are one of the principal sources of American law. Statutes are those points of law created by elected legislatures and approved by elected executives. Many states have enacted statutes that grant (various levels of) immunity from tort lawsuits to educators. There is not any consistent historical or legal ideology based on which these states have granted this immunity to teachers. The grant of statutory immunity is simply a policy decision made by the legislatures of many states. For example, in some states educators are shielded from liability when acting within the scope of their duties, exercising judgment or discretion, not using excessive force to discipline a student, or operating a motor vehicle.

Why would these states grant immunity to educators? The explanations are diverse. Some include the desire to attract and maintain highly qualified teachers, to give teachers greater authority over their classrooms, to minimize the costs of litigation, to reform the tort system one step at a time, and to simply insulate teachers from the consequences of their own negligence. All of these explanations (as well as most others not listed) are policy decisions. The immunity need not exist at all, and where it does exist, it could be taken away. The grant of immunity is a conscious choice that a state may take or not take. The immunity could be absolute, or it could cover only certain actions. It could be very narrow, very broad, or anywhere in between. It could be total immunity, immunity beyond a certain dollar amount, or immunity only up to a certain dollar amount.

The Paul D. Coverdell Teacher Protection Act of 2001

The Paul D. Coverdell Teacher Protection Act of 2001 (named after the late Democratic senator from Georgia who had introduced the act in a prior Congress) was included in the “No Child Left Behind” education bill. The Teacher Protection Act states that if teachers and principals follow school rules and act within the scope of employment responsibilities, they will not be subject to liability. The act does not protect teachers or principals when operating a motor vehicle or when engaged in criminal misconduct, gross negligence, reckless misconduct, or a flagrant indifference to the safety of the individual harmed. It also states that tough standards should be applied before punitive damages are allowed, and that teachers and principals should be liable only for their “fair share” of fault for harm and not for injuries caused by others.

Tort reform

Tort reform is similar in some ways to statutory immunity in the sense that it is intended to reduce the amount of tort litigation. Tort reform involves legislation that restricts remedies to negligence or that caps damages awards, especially punitive damages, typically to $100,000. Advocates of tort reform argue that it lowers liability insurance premiums and prevents plaintiffs from receiving windfall judgments. Opponents contend that tort reform denies plaintiffs the recovery they deserve for their injuries (Garner, 2006).

Table 10-2 A Summary of Defenses to the Tort of Negligence

Table 10-2 A Summary of Defenses to the Tort of Negligence

Even with absolute immunity, a teacher, principal, or superintendent can be sued. The immunity is simply a defense that the educator will assert. Moreover, asserting the defense does not necessarily mean the defense will be successful. The immunity can be challenged on any number of policy or other grounds. Having immunity does not mean that educators should cease exercising an appropriate duty of care. The immunity simply creates another hurdle over which a student–plaintiff must jump in order to be successful in a negligence action. The immunity is an attempt to lessen the likelihood of a teacher being sued, and if he is sued, to make it more difficult for him to be found liable.

The four affirmative defenses to the tort of negligence are summarized in Table 10-2.

Intentional Torts

Intentional torts are another class of torts. There are principally four intentional torts that could be confronted in the educational context: (1) battery, (2) assault, (3) false imprisonment, and (4) intentional infliction of emotional distress. What distinguishes the intentional torts from the tort of negligence is the requirement of a particular state of mind on the part of the tortfeasor—intentionality. It is not possible to accidentally assault someone, or unintentionally commit a battery.

Battery

A battery is “an intentional act that causes harmful or offensive bodily contact” (e.g., Etheredge v. District of Columbia, 1993). The first part of a battery is the commission of an intentional act. The batterer must commit the act intentionally—however, the batterer need not intend the outcome, or even intend the particular victim. Intent can be transferred from an intended victim to the actual victim. The second part of the intentional tort of battery is harmful or offensive bodily contact. The batterer must either actually touch the victim’s person (punch, hit, shove) or cause someone or something else to touch the victim’s person (pushing someone else or tossing an object). One’s person is usually extended beyond one’s physical body to include clothing, things one is carrying, etc.

The batterer need not have intended the harm or offense; she need only have intended the touch. It is relatively easy to determine if a contact is harmful. Physical injury is usually what is required. Offensive contact might be a little bit more difficult to predict or recognize. Juries have found many seemingly innocuous touches to have been offensive. When the touches are directed at children, juries tend to be even more likely to find the touch to have been offensive. Again, a “reasonable person” standard is applied. Would a reasonable person have taken offense at the touch? Educators should be careful whenever touching another person in the school context—especially touching children. Of course, there are plenty of other potentials for battery in the schoolhouse. Whenever any object gets thrown—even if not “at” anyone—the potential for a battery exists if someone finds his way into the path of the thrown object. So long as the act was intentional, the intent follows the act.

Assault

The most common law definition of assault is:

An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (b) the other is thereby put in such imminent apprehension.

(Restatement Second of Torts, 1974, § 21)

In other words, assault is like an attempted battery or a threat of a battery. As a sort of attempted battery, an assault would be when one tries to make harmful or offensive bodily contact, fails to do so, but does create an imminent apprehension of harmful or offensive contact. As a threat of a battery, an assault would occur whenever one threatens to make harmful or offensive bodily contact and puts the victim in imminent apprehension of the contact.

How do we know whether the victim was in “imminent apprehension” of harmful or offensive bodily contact? Well, we have to ask whether a reasonable person in the same situation would have been in imminent apprehension. And a jury will decide. Does the issue of assault occur often in educational settings? It depends on whom you ask. Some say that at any large school there are numerous assaults every day—among students, between teachers and students, and even among assistant principals and students and teachers. Whether this assertion is true or not, it is rather rare that one of these would-be assault victims brings the matter to the courthouse. It would be much more likely that the school’s internal disciplinary procedures (discussed elsewhere in this text) would remedy the situation to the victim’s satisfaction. Non-etheless, educational leaders should be aware of the potential for liability under the assault theory.

False Imprisonment

The third of the intentional torts relevant to the educational setting is false imprisonment. Admittedly, the intentional tort of false imprisonment is only a very rare issue in public school law. Because the issue does arise on occasion, it is worthy of a brief introduction. False imprisonment is a situation where one person intentionally confines another in a fixed space for an unreasonable period of time without legal justification. Do schools and educators imprison students? Yes—all the time. However, not every confinement is “false.” Schools and educators are legally justified—in fact, often obliged—to confine students. We confine students to particular plots of land, buildings, and even particular rooms within buildings. During the school day, this confinement is justified. It is one of the jobs of school systems to keep students in the place they are supposed to be—so that children can learn. We even use confinement as a disciplinary tool—with “timeout” areas (and in the recent past with “timeout boxes”). This is not false imprisonment.

The most likely situation in which a school district or educator might be accused of false imprisonment is outside of the school day. In early childhood and elementary school settings, this might be in a situation where an unauthorized person has come to pick up a child after the school day, and the school refuses to release the child. In middle and high schools, it would more likely occur in situations where educators confine student movements at football games, dances, and the like. In general, so long as the educator is acting in an “educator” role—that is, in loco parentis—the educator is legally justified in confining the child in reasonable spaces for reasonable periods of time. Would it be reasonable for an early childhood teacher to confine a 5-year-old child in the school building until it could be determined if “Uncle Walt” is really authorized to take the child home? Of course. It would be derelict for the teacher to do anything else. Would it be reasonable for a middle school principal to keep her students locked up in an inner room of the school building—maybe even against their parents’ wishes—after school hours but during a severe tornado warning? Probably. Would it be reasonable for a high school assistant principal to contain a group of students in the grandstand at a football game as a fight is breaking out in the parking lot? Sure. In all three situations, the educator is acting in the interests of safety and security. The educator is acting just as a reasonable parent would in the same situation.

Schools and educators would have to act in an extremely unreasonable way in order to be liable for the intentional tort of false imprisonment. So long as educators and schools are acting reasonably and in the best interests of the children, it is very unlikely that their confinements would be found to be anything other than legally justified.

Intentional Infliction of Emotional Distress

In tort law generally, emotional or psychological injury is not compensable unless it accompanies physical injury. Intentional infliction of emotional distress is an exception to this general rule. The tort is reserved for situations in which a defendant has behaved so maliciously that the “extreme outrageousness” of the conduct leads us to believe that the defendant intended nothing other than intentionally interfering with the plaintiff’s peace of mind. The bar to proving intentional infliction of emotional distress is very high. This intentional tort is reserved only for the most extreme situations.

Linking to Practice

Do:

• Caution teachers about pushing, shoving, or throwing objects at students. This seems like common sense, but in the sometimes emotionally charged school day, a recalcitrant child can provoke even the most patient of adults.

• Be very careful in administering corporal or physical punishment (see Chapter 5). Never administer physical punishment that is specifically forbidden by state law or school board policy.

• Think carefully about the situation, the age and sex of the student(s), and the rationale before holding students against their will.

Do Not:

• Hesitate to investigate questionable behavior (see Chapter 11).

• Ignore or tolerate verbally abusive teachers, coaches, or others associated with the school. This also seems like common sense, but unfortunately such behavior is sometimes tolerated.

Managing the Risk of Tort Liability

The financial risks associated with tort liability are significant. Central to the roles of school leaders is the task of managing these risks. This does not mean that school leaders are (or should be) expected to eliminate all potentially risky situations from the schoolhouse. Eliminating all tort risk would be impossible, and even if it were possible, it would likely not be desirable. Education is a risky business. Think about it—we put upwards of 2,500 adolescents in some high school buildings. This fact alone—even if there is expert supervision in the safest buildings on the planet with the best-intentioned of children—is a dangerous situation. Although the sheer numbers may not be as large in middle and elementary schools, the danger is no less great. This dangerous situation is made worse by increasing child–adult ratios, deferred maintenance on buildings, and children whose intentions are sometimes less than pure. Moreover, the educational outcomes that we desire require that we infuse even more danger. We put scissors into the hands of children and corrosive chemicals into the hands of adolescents—all in between transporting them on increasingly busy and dangerous roads in aging school buses.

The task of risk management in such a situation is daunting. And the stakes are no less great. Non-etheless, school leaders are charged with managing these risks. These risks are managed through (1) insurance policies, (2) social control polices, and (3) facility inspection and maintenance.

Insurance

Insurance is a very highly regulated industry in all U.S. jurisdictions. The regulation of the expenditure of public funds on insurance is likely even more highly regulated in your state. In most school districts, insurance—if it is a part of the district’s risk management plan at all—is purchased at the district level. It is most unlikely—probably unheard-of—that individual campuses within a system would purchase their own insurance policies.

One area where school districts are most likely to purchase insurance is for transportation. Motor vehicle insurance is likely a necessity for most school districts. In terms of managing tort risks, so-called liability insurance is almost always advisable and is usually required by state statutes. It is not uncommon for districts to also purchase policies that protect the district’s investment in its own vehicles (collision or comprehensive).

In addition to insurance that school districts might purchase, it is becoming increasingly common for individual educators to purchase various types of liability policies. In addition to liability policies that might be available directly from insurance companies or through professional insurance brokers or agents, teacher unions, professional associations, and even school systems and districts could (and do) offer liability protection to teachers, administrators, and even school board members. These individual policies often will provide for both the amount of a settlement or judgment against the individual and the costs of legal representation. If one is considering purchasing an individual liability policy, she should be advised to read the policy carefully to ascertain exactly the protections that she is purchasing.

Social Control and Strategic Supervision

Social control policies are the rules, regulations, and practices that have been designed to control the movement, behaviors, and actions of students. These policies are usually compiled into a code of student conduct. A code of student conduct usually contains a list of rules for student behavior and the punishments or sanctions for failure to follow these rules. In 2007, over 95% of public schools reported that codes of student conduct were in place (Robers, Zhang, & Truman, 2010). Social control policies can also include so-called target-hardening practices such as metal detectors, security guards, security cameras, and locked doors.

Strategic supervision plans are designed to provide consistent and effective supervision of students, especially in areas of the school where the potential for injury is increased. Examples may include hidden alcoves as in our case study, playgrounds, dressing rooms, and laboratories. Territoriality considers control over the surrounding area by the use of physical attributes that delineate space and express ownership. School administrators cannot be expected to provide security in surrounding neighborhoods, but it is important to establish control in a rational way that seems to make sense to most people. Social control policies, strategic supervision, and territoriality are absolutely necessary not only for effective teaching and learning, but also to decrease the risk of the tort of negligence.

Facility Inspection and Management

Campus leaders are responsible for inspecting and maintaining their campus buildings. Even if these tasks have been delegated to a professional maintenance person or engineer, the responsibility is still the principal’s. Although it would not be appropriate for most principals to check the gauges on the boiler every hour or tighten every gas valve in the chemistry lab, principals should be personally involved in inspection and maintenance. The role of the principal in facility maintenance and inspection is an executive role. In addition to the regular management of staff who coordinate the daily inspection and maintenance, the principal should plan and supervise major infrastructure updates, should walk through the facilities daily, and should personally coordinate the master facility plan.

The past two decades have seen a great deal of deferred maintenance in public buildings. School buildings are no exception. Thus, the next few years will likely see an increasing number of large facility enhancement projects—both as a result of the deferred maintenance and as a result of the increasing role of technology. When these major facility projects are undertaken, it must be the job of the school principal to coordinate them. Invariably—even if undertaken during the summer—these projects temporarily displace people and services. Likewise, the projects likely create seriously dangerous conditions during construction. Unfortunately, the “do not enter” and “danger” signs that are usually more than sufficient in office buildings usually do not deter children and adolescents in the least. Generally, temporary barriers need to be constructed to keep curious students out. Even if the construction foreperson says that the signs are enough, you know the work being done and you know your students—the call is yours.

Summary

Tort law is not a fun topic. Nobody likes talking about getting sued. However, the lack of joy in the topic makes it no less important. A single serious avoidable injury on a campus has the potential of ending a principal’s career. So, although it is certainly true that no one wants to see a child or adolescent injured, you also want to keep your job. If you have not yet been motivated to take tort liability and risk management seriously, knowing that your job is on the line should do the trick. Managing the risk of negligence is hard, intellectually taxing work. Your efforts will likely not be valued too terribly highly by the teachers in your building. Here’s what they’ll say after you leave the room: “Oh, she’s just afraid of getting sued; if she wasn’t such a scaredy-cat, maybe we’d be able to get something done here instead of wasting all this time on goofy safety garbage.” It’s not a compliment. But it is your job. A principal who can create a “culture of safety” on her campus will go a long way toward becoming a successful long-term principal.

Connecting Standards to Practice

Into the Danger Zone

Sharon Grey had arranged a meeting with Riverboat High School athletic director Blanche Barnhart, Principal Tara Hills, and school district attorney Roger Garcia. All the participants knew that the purpose of the meeting was to consider the injury to Lucy Overstreet. Coach Barnhart started the meeting with a brief background summary. Riverboat High School has a deep swimming pool used for interscholastic diving competition. The high school also has a racing pool used by the swim team for competitive racing. The racing pool is three and a half feet deep at each end. On the deck in front of each of the six swimming lanes in this pool is a starting block standing 18 inches above the water level. In competitive meets, participants in the various races typically stand on the starting block and, when the starter horn sounds, dive into the water. In some specific races, however, participants start the race already in the water.

With this background, Principal Tara Hills added her knowledge regarding Lucy Overstreet. Lucy had demonstrated excellent swimming skills and as a 14-year-old freshman had tried out for the swim team. Unlike many of the freshman trying out for the team, Lucy had never swum competitively and was at a disadvantage from the moment she stepped into the pool area. But her natural ability presented a great upside, and she was placed on the JV team by head coach Ron McKay. Soon after being selected for the team, Lucy and her parents informed Coach McKay that she had little if any experience diving from the starting blocks and that she had a deep-seated fear of injury from diving into the shallow water.

Coach McKay instructed two veteran swimmers to help her practice diving off the deck of the diving pool into deep water. Assistant Coach Tracy observed her dives and stated that Lucy needed more practice. Her teammates also remarked that Lucy had gone in too deep. Coach McKay apparently heeded this advice and scheduled Lucy to participate in two relay events. In these events the first swimmer starts in the pool, swims two or four laps of the pool and “touches” the second swimmer, who dives into the pool from the starting blocks. At the third meet of the year with archrival North High School, Coach McKay advised Lucy that she could help the relay team be more competitive if she swam third rather than first. Lucy informed Coach McKay that she was afraid of diving off the blocks, did not know how to dive off the blocks, and begged him to allow her to continue to swim first. Coach McKay refused and told Lucy that if she did not move to the third position, she would be off the swim team (Lucy’s view) or would be off the relay team (Coach McKay’s view). She was also not given the opportunity to start her leg of the race from the pool deck rather than the starting blocks, which is permissible by state activity association rules. Two relay members were instructed to help her practice. During Lucy’s second practice dive, she hit her head on the bottom of the pool, was knocked unconscious, sustained a severe concussion, and fractured two vertebrae in her neck. If not for the quick thinking of one of her teammates, Lucy would most likely have drowned. Fortunately, Lucy’s prognosis appears good but she will need several months of physical therapy, suffers short-term memory loss from the concussion, and will miss most if not all of her freshman year because of her injuries.

School attorney Garcia spoke. “As you know, Lucy’s parents have sued the district and Coach McKay for negligent training, supervision, and control of the swim team members to protect them adequately against diving accidents. The suit claims that Coach McKay breached his duty of care to adequately protect members of the team against diving accidents. The breach was cause-in-fact of the injury, and because it was foreseeable, the breach is a proximate cause of Lucy’s injuries. The suit asks for the district to cover all of Lucy’s medical bills including physical therapy, provide her with homebound instruction, and pay Lucy $500,000 for pain and suffering.”

Attorney Garcia stated, “My first reaction was that Lucy had assumed a risk when she went out for the swim team. In fact, her parents did sign the activity association model assumption of risk form. However,” he continued, “the activity association has an addendum to the bylaws that specifically addresses diving from starting blocks into shallow water. The addendum notes that diving into water less than 5 feet deep is dangerous and that 95% of swimming injuries occur in water 5 feet deep or less. The manual states: ‘Even an experienced diver can be seriously injured by diving improperly … or diving from starting blocks without proper training and supervision.’” Attorney Garcia continued, “The addendum than provides specific instructions on how swimmers are to be certified to dive from starting blocks. I have some concerns that these procedures were not followed.” He looked at each of the administrators. “I would like for you to draft a recommendation to the superintendent on whether or not to settle with Lucy’s parents.”

Question

1. Argue for or against a settlement with Lucy’s parents. Clarify the legal question. Cite applicable ISLLC standards, the elements of the tort of negligence, and ethical principles to support your answer. Are all of the elements of the tort of negligence present? There is an inherent risk in any sport, and students are frequently injured. Not every injury is severe, and the vast majority of injuries do not require missed playing time, much less hospitalization and physical therapy. It is also true that not every injury is foreseeable. But, was Lucy’s injury foreseeable? If you assume Coach McKay breached his duty (and I am not saying he did), was the breach cause-in-fact of Lucy’s injury? Besides assumption of risk, are there other defenses to the tort of negligence in this case? Write a memorandum to the superintendent or school board president with your response.