Tort Liability and Negligence

torts Civil wrongs.

Courts also have decided cases in which teachers’ dress and grooming conflicted with school district policies or traditions. One California court ruled that women teaching at “back-to-basics” schools in Pomona could not be required to wear dresses if they preferred to wear outfits with pants. Another California court ruled that Paul Finot’s wearing of a beard was a symbolic expression protected by the First Amendment as well as a liberty protected under the Fourteenth Amendment. On the other hand, when Max Miller’s contract was not renewed because of his beard and long sideburns, the circuit court upheld the dismissal. “As public servants in a special position of trust,” the judges stated, “teachers may properly be subjected to many restrictions in their professional lives which would be invalid if generally applied.” In any case, proper attire and grooming are important considerations in the profession of teaching whether or not they are legally required.19

9-2j tort Liability and negligence

Torts are civil wrongs. Under tort law, individuals who have suffered through the improper conduct of others may sue for damages. For example, educators may be found guilty of negligence when students are injured during classes, on the playground, or elsewhere if the injury resulted from failure to take appropriate preventive action. Of course, a case won’t be filed every time a child is accidentally injured, but when injury results from negligent or intentional action, legal remedies can be pursued.

Generations ago, nearly every school district was immune from tort liability. This immunity had its origins in English common law, under which the king, as sovereign, could not be sued. Since 1960, most states have eliminated or modified this view of governmental immunity. In states that permit suits, the parties sued may include the school district as well as specific school administrators, teachers, and other staff. For example, school districts can be held liable for their employees’ negligent or malicious actions (such as sexual abuse, neglect of hazing or bullying among students, or failure to report students’ suicidal intentions) if school officials have provided little or no supervision or ignored persistent complaints. District officials may be guilty of negligence if a student is being harassed, and they knew about the situation but did nothing. These responsibilities even extend to malicious or neglectful action or inaction by volunteers who donate time to work with a school.20

Teachers are required by law to protect their students from injury or harm (Photo 9.1). In nearly all states, the traditional standard of care is what a reasonable and prudent person would do under similar circumstances. In one case, a kindergarten teacher was charged with negligence when a child fell from a playground structure while the teacher was attending to other children. The court ruled that the teacher was not required to have all children in sight at all times. Her presence in the immediate area was sufficient to establish that the teacher was fulfilling her duty. The New York State Supreme Court reached a similar conclusion in overturning a jury award to an injured high school athlete, on grounds that school officials had exercised “reasonable care” in operating their school’s football program. In other cases, however, school districts or their

19Miller v. School District No. 167 of Cook County, Illinois, 495 F. 2d 65 (7th Cir. 1974); Finot v. Pasadena City Board of Education, 58 Cal. Rptr. 520 (1976); June Million, “Dress Codes for Teachers?” Education Digest (January 2004), pp. 59–61; Edward Graham, “Do Teachers Need Dress Codes to Know What to Wear at School?” NEA Today (June 2, 2014), available at www.neatoday.org; and “May a Teacher Wear Clothing Not Approved by a Teacher Dress Code?” 2014 posting by the First Amendment Center, available at www.firstamendmentschools.org. 20Richard S. Vacca, “Tort Liability and School Staff,” CEPI Education Law Newsletter (January 2008), available at www.cepi.vcu.edu/publications/newsletters; “Ed Law Briefly: School Officials Had No Actual Knowledge of Harassment,” November 12, 2014, posting by Real Clear Education, available at www.realcleareducation.com; and Matt M. Carver, “Sizing Up Volunteer Fitness,” School Administrator (February 2015).

> PhOtO 9.1 Teachers must try to foresee potentially dangerous situations and prevent injuries to their students. employees have been found partially or wholly responsible for students’ injuries that a reasonable person should have been able to foresee. Teachers and administrators must be particularly vigilant to ensure that precautions are taken to ensure the safety of students with disabilities, such as sometimes assigning an aide to watch an autistic child with a history of wandering away.21 An important principle is whether the injury could have been foreseen and thus prevented. An overweight student expressed concern to her physical education teacher about a class requirement to perform a back somersault. The teacher insisted the somersault be done, and the student’s neck snapped in the attempt. The court said the teacher showed utter indifference to the student’s safety, and the jury awarded $77,000 in damages. Similarly, a high school student in an introductory chemistry class blew away his hand while completing an assignment to make gunpowder. The court ruled that the injury was foreseeable, and the teacher was negligent. Typically, courts will take into account the age and maturity of Catherine Ledner/Getty Images students, the degree of difficulty and inherent danger of activities, the proper use of protective devices, and related considerations in determining whether adults were negligent in not foreseeing the likelihood of injuries.22 School districts require parents to sign consent forms when students are involved in activities such as field trips or athletic competitions. The form generally has two purposes: (1) to inform parents of their children’s whereabouts and (2) to release school personnel from liability in case of injury. However, because parents cannot waive a child’s right to sue for damages if an injury occurs, these forms actually serve only the first purpose. Obtaining a parental waiver does not release teachers from their legal obligations to protect the safety and welfare of students.

Recent decades have brought what some observers describe as an explosion in litigation related to liability and negligence. In addition, rather than accepting the exercise of reasonable precautions as a defense against negligence, recent judicial decisions have frequently emphasized “strict liability.” In this situation, teachers cannot be too careful, for negligence might occur in numerous school settings. Physical education instructors, counselors, sponsors of extracurricular activities, and shop and laboratory teachers must take special care. Prudent safeguards include a clear set of written rules, verbal warnings to students, regular inspection of equipment, adherence to state laws and district policies regarding hazardous activities, thoughtful planning, and diligent supervision.23

21Clark v. Furch, 567 S.W. 2d 457 (Mo. App. 1978); Benjamin Dowling-Sendor, “Friday Night Tragedy,” American School Board Journal (September 2004); “School Liability and Negligent Supervision of Children with Disabilities,” January 16, 2014, posting by Education Expert, available at www.education-expert.com; and Paris Achen, “Lawsuit Filed on Behalf of Injured Teen Gymnast,” The Columbian (February 10, 2015), available at www.columbian.com. 22Landers v. School District No. 203, O’Fallon, 383 N.E. 2d 645 (Ill. App. Ct. 1978). See also Edwin C. Darden, “A Slippery Slope,” American School Board Journal (April 2007); Richard S. Vacca, “Student Safety,” CEPI Education Law Newsletter (February 2011), available at www.cepi.vcu .edu/publications/newsletters; and “Doe v New York Dept of Educ.,” May 7, 2014, posting by Justia US Law, available at www.law.justia.com. 23Mark S. Kapocius, “Sound Advice,” American School Board Journal (March 2006); Richard S. Vacca, “The Duty of Care and Deliberate Indifference,” CEPI Education Law Newsletter (May 2014), available at www.cepi.vcu.edu/publications/newsletters; and “Proving Negligence or Breach of Statutory Duty,” 2015 posting by Lexis Nexis, available at www.lexisnexis.com.