1. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e © 2012 Pearson Education, Inc. All rights reserved. Chapter 6 School Personnel and School District Liability

2. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-2 It should be noted that teachers and administrators are held to a higher standard of care than the ordinary man on the street. The teacher or administrator is under the duty to possess more than the “ordinary” amount of intelligence in relation to students and their care.

3. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-3 The School as a Safe Place Schools are presumed to be safe places where teachers teach and students learn. The prevailing view held by the courts is that prudent professional educators, acting in place of parents, are supervising students under their care and ensuring, to the greatest extent possible, that they are safe.

4. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-4 Liability of School Personnel School personnel are responsible for their own tortuous acts in the school environment. Liability involving school personnel normally falls into two categories--intentional torts and unintentional.

5. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-5 Intentional torts such as assault, battery, libel, slander, defamation, false arrest, malicious prosecution and invasion of privacy require proof of intent or willfulness; whereas simple negligence, as an unintentional tort, does not require such proof of intent or willfulness.

6. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-6 Vicarious Liability Since school districts are deemed employers of teachers, they also may be held vicariously liable for the negligent behavior of their employees. Under the old theory of respondeat superior, the master is only responsible for authorized acts of its servants or agents.

7. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-7 Foreseeability Foreseeability is a crucial element in liability cases, especially in cases involving negligence. Foreseeability is defined as the teacher’s or administrator’s ability to predict or anticipate that a certain activity or situation may prove harmful to students.

8. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-8 Once this determination is made, there is an expectation that prudent steps be taken to prevent harm to students. Failure to act in a prudent manner may result in liability claims.

9. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-9 Assault An assault is an offer to use force in a hostile manner which causes apprehension. The person being assaulted normally must feel a degree of immediacy in the sense that the one committing the assault will execute it promptly and has the apparent capacity to do so.

10. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-10 Battery A battery has occurred when physical contact actually takes place. In practice, a battery is a successful assault. A battery involves unwelcomed and unprivileged body contact involving another person that is hostile and unlawful.

11. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-11 Assault and battery affect teachers, administrators and students in the school environment. Every person is responsible for his or her actions in cases involving assault and battery.

12. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-12 Defamation Defamation occurs when false statements are made about another person. These statements generally are ones that tend to harm a person’s good name, reputation or subject the person to hatred, contempt or ridicule.

13. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-13 Certain statements are privileged if made in good faith and within the scope of educator’s duty. Therefore, school personnel who expect to be protected by qualified privilege must not make false statements regarding students or colleagues with malice or the intent to harm.

14. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-14 Libel and Slander Libel is written defamation whereas slander is considered oral defamation. Both include statements or communication that result in injury to a person’s reputation, good name, or standing in the school or community.

15. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-15 A third party must be privileged to this communication to establish defamation. The burden of proof rests with the person who claims injury based on defamatory statements.

16. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-16 False Imprisonment False imprisonment occurs when a student is detained illegally by the teacher or the principal. False imprisonment is considered to be an intentional tort.

17. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-17 Unintentional Torts Unintentional tort is a wrong perpetrated by someone who fails to exercise that degree of care in doing what is otherwise permissible; i.e., acts negligently. Negligence is perhaps the most prevalent source of litigation involving injury to students.

18. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-18 Negligence is generally viewed as the failure to exercise a reasonable standard of care which results in harm or injury to another person. Most negligence cases involve civil wrongs, although there may be instances in which the accused faces both civil and criminal charges.

19. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-19 Standard of Care Standard of care is an important concept in cases involving liability of school personnel. It requires that school personnel exercise the same degree of care which a person of ordinary prudence would exercise under the same or similar conditions.

20. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-20 This standard of care will vary depending on particular circumstances. The level of care due students changes based upon the age, maturity, experience and mental capacity of students, as well as the nature of the learning activities in which they are involved.

21. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-21 Defenses for Negligence Contributory Negligence If the evidence reveals that persons claiming injury exhibited conduct that fell below a reasonable standard, liability charges against school personnel may be abrogated.

22. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-22 Assumption of Risk Assumption of risk is commonly used as a defense in situations involving various types of contact related activities such as athletic teams, pep squads and certain intramural activities.

23. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-23 Even though a student assumes an element of risk, it does not relieve school personnel in cases where they fail to meet a reasonable standard of care based upon the age, maturity, risk and nature of the risk associated with the activity.

24. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-24 Comparative Negligence Under comparative negligence, acts of those responsible are compared in the degree of negligence attributed in an injury situation. Juries will normally determine the degree of negligence which may range from slight to ordinary to gross depending on the circumstances.

25. School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 6-25 Immunity Immunity as a legal concept has diminished in terms of impact. It is based on the old common law of sovereign immunity, “The King can do no wrong,” meaning that the state or federal government is protected from suit and cannot be held liable for injuries that resulted in the proper execution of governmental functions.