Running head: ARTIFACT #5 TORT AND LIABILITY 1

Artifact #5 Tort and Liability

Arizbeth Zavala

College of Southern Nevada

EDU 210
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Abstract

As described by Cambron-McCabe, McCarthy, and Eckes (2014), a tort is a civil wrong that

causes harm due to the unreasonable and careless conduct of others. This means that individuals

can become liable for the consequences of their actions if it results in injuries to others.

Negligence, the first category of tort, is the failure to act or take proper care in doing something.

“It is a breach of one’s legal duty to protect others from risks of harm (Cambron, McCarthy, &

Eckes, 2014).” The second category of tort is Intentional torts, which includes assault, battery,

false imprisonment, or the intentional infliction of mental distress. Lastly, the third category of

tort is defamation. Defamation is classified as slander, which is spoken, or libel, which is found

in writing or photography. Usually, the remedies of tort liability cases are awarded in the form of

money. As future educators, we must ensure that our behavior and work ethic is kept to high

standards so that we are never accused of being negligent or breaching our duty.

Keywords: Tort, unreasonable, negligence

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Tort and Liability

A middle school student by the name of Ray Knight was suspended for three days

because of repeated unexcused absences. He was dismissed home with notice of his suspension

but he disposed of it. Although it is district wide policy to contact parents via telephone when a

student is suspended, the school failed to contact Ray’s parents and thus, they were oblivious to

his suspension. Unfortunately, during the first day of his suspension, Ray was accidently shot

while visiting a friend. Because Ray’s parents were unaware of his suspension, they believed the

school was liable for his injuries and that his Fourteen Amendment rights were violated because

he was not awarded a hearing prior to his suspension.

Teachers and school administrators share the common goal of maintaining students safe

when entrusted in their care. As stated by Cambron-McCabe, McCarthy, and Eckes (2014), they

also have the duty to anticipate foreseeable dangers and take the necessary precautions to protect

those students. When a student is physically or mentally hurt, and their injuries developed on

school premises, school designated events, or on the bus, the parents have the right to sue the

district using their due process rights. However, if the injuries occurred away from school

property and the parents continue to believe that the school district is responsible, it will be up to

the local court to decide who is at fault. If the case surpasses state jurisdiction, the Supreme

Court must then rely on preceding court cases like Warrington v. Tempe Elementary School,

Pistolese v. William Floyd, and Goss v. Lopez to reach a verdict. Additionally, the Supreme

Court would also consider contributory v. comparative negligence to determine if the plaintiff

was at fault or if both parties shared some of the fault. Based on these court cases and our

judgement as Nevada education law students, we must conclude whether the Supreme Court

would rule in favor of or against Ray Knight.

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Plaintiff’s Defense

Despite that Ray was shot away from school property, his parents could allege that his

injuries occurred because of the school’s lack of communication and professionalism. In the case

of Warrington v. Tempe Elementary School, a seven-year-old boy named Andrew was struck by

a car after the bus dropped him off. It appeared that Andrew accidently ran into traffic because

another boy who had threatened to beat him up, began to chase him. Due to the severity of the

accident, Andrew suffered irreversible brain and spinal damages. As a result, his parents filed a

lawsuit against the school district claiming that the district “negligently placed the bus stop in a

location that subjected children to a foreseeable and unreasonable risk of harm as they walked to

their homes (“Warrington v. Tempe”).” This was proven because the bus stop was located in a

heavily trafficked area where cars would surpass speeds of over forty-five miles per hour. After

the case proceeded to trial, the court placed forty-five percent of the fault to Andrew, forty

percent to the parents, and fifteen percent to the school district. The court in this case determined

that the district owes a duty when establishing a bus stop, to refrain from inflicting its students to

any unreasonable harm (“Warrington v. Tempe”). Similarly, Ray’s parents could allege that the

school subjected Ray to unreasonable danger when they suspended him without notifying them.

Ultimately, the inaction of the school to alert Ray’s parents of his suspension could be used to

assert that it was a prominent factor to his accident.

To argue a violation of Fourteenth Amendment rights, Ray’s parents could use Goss v.

Lopez. In this case, the court held that minimum due process must be afforded before a student is

suspended for a brief period of time (Cambron-McCabe, McCarthy, and Eckes, 2014). Prior to

the decision, nine students, including Dwight Lopez, were suspended for ten days for defacing

school property (Skelton). Because they were not provided with a hearing, the students brought a
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constitutional claim in federal court alleging that their Fourteenth Amendment rights had been

infringed. The court recognized that a student’s entitlement to education classified as a property

interest and must be guaranteed by the Fourteenth Amendment. Additionally, the court ruled that

such a right could not be impaired unless the student is afforded notice of charges and an

opportunity to refute them (Cambron-McCabe, McCarthy, and Eckes, 2014). Likewise, Ray was

suspended without the opportunity of a hearing. His parents could also introduce a constitutional

claim and contend that the school not only failed to inform them of Ray’s suspension, but also

failed to provide him with the due process rights he is legally entitled to.

Defendant’s Defense

The school district has the opportunity to defend itself because it is not expected for

children to be under staff surveillance at all times during the school day (Cambron-McCabe,

McCarthy, and Eckes, 2014). This is especially true when students are truant, or absent due to

suspensions or personal reasons. The school district could apply Pistolese v. William Floyd

Union Free School District, to refute the claims of Ray’s parents. In this case, a student walking

home from school was assaulted by other juveniles. The incident took place on Montauk

Highway about thirty minutes after the student’s departure from school. The Supreme Court of

New York ruled in favor of the school district because the assault took place while the student

was no longer under the control of the school. Once students are out of school domain, the

responsibility of their safety is bestowed upon the parent or guardian. “A school’s custodial duty

ceases once the student has passed out of its orbit of authority and the parent is perfectly free to

reassume control over the child’s protection (“Pistolese v. William”).” Additionally, the school

cannot foresee or predict dangers to students once they have left the building. Evidently, Ray

was shot away from school grounds while serving his suspension. This fact alone would allow
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the school district to claim that Ray was not under their area of authority and thus, would remove

their responsibility of his safety. Moreover, the school could not have known that Ray would

visit his friend and subject himself to such tragic accident.

Contributory v. Comparative Negligence

In deciding whether to rule in favor of the school district or Ray Knight, the court could

consider contributory or comparative negligence and apply it to the case. As acknowledged by

Cambron-McCabe, McCarthy, and Eckes (2014), contributory negligence demonstrates that the

actions of the plaintiff have been substantially responsible for their injury. This means that it

makes no difference that the defendant was negligent and partially at fault. When assessing

whether contributory negligence is present, children are not held to the same standard of care as

adults. Because Ray’s age is between seven and fourteen, he is considered incapable of

negligence, however, this supposition can be argued against (Cambron-McCabe, McCarthy, and

Eckes, 2014). Furthermore, comparative negligence is determined when the plaintiff and/or one

or more defendants share responsibility of fault and so the fault is allotted to more than one

person. In the case of Ray Knight, it would be highly possible for the court to determine that both

the school and Ray were to blame for his injuries.

Assessment of Outcome

Although the school could not foresee Ray Knight’s lamentable accident, they breached

their policy by not informing the parents of his suspension. If the school proved there was

contact with the parents, or that there was documentation of a voicemail, they could have

protected themselves from a lawsuit. However, because they lacked to communicate with the

parents, the school demonstrated that they do not follow their own procedures. Additionally, the

school violated Ray’s Fourteenth Amendment’s rights by withholding a hearing prior to

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suspending him. Because the school subjected Ray to unreasonable harm and deprived him of a

hearing, the court would apply comparative negligence and place at least eighty-five percent of

the fault upon the school district. Fifteen percent of the fault would be placed on Ray solely

because he disposed of the suspension notice and withhold that information from his parents.

Conclusion

To conclude, we have learned that a tort is civil wrong that causes harm due to the

unreasonable conduct of others. The three categories of tort are negligence, intentional torts, and

defamation. As previously mentioned, Ray Knight is a middle school student who was

suspended and sent home with only a notice that he threw away. His parents remained unaware

of his suspension because the school failed to alert them telephonically. Unfortunately, Ray was

shot during his first day of suspension and so his parents decided to sue the school district with a

premise of negligence and violation of Fourteenth Amendment rights. To rule in favor of Ray

and his parents, the Supreme Court could utilize Warrington v. Tempe to argue that the school

promoted unreasonable harm upon Ray because of their lack to inform them of his suspension.

Furthermore, they would refer to Goss v. Lopez to determine that Ray’s Fourteenth Amendment

rights were violated because the school failed to concede him with minimum due process rights.

To defend themselves against a lawsuit, the school district could adopt Pisolese v. William Floyd

to affirm that it is not expected for school personnel to keep children under direct supervision

while on school grounds. Additionally, the school could remind the court that they cannot

foresee or predict dangers to students once they have left the building or are absent due to

suspensions or personal reasons. Although the school district seems to be mostly at fault, it is

possible for the Supreme Court to apply comparative negligence upon Ray Knight because he

disposed of the notice sent home. Nonetheless, based on the current evidence and comparison to
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the above-mentioned court cases, the Supreme Court would rule in favor of Ray Knight and

deem the school district as negligent.

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References

Cambron-McCabe, N.H., McCarthy, M.M., & Eckes, S. (2014). Legal Rights of Teachers and

Students. Upper Saddle River, NJ: Pearson.

“Pistolese v. William Floyd Union Free District.” (n.d.). Retrieved April 29, 2018 from

https://www.leagle.com/decision/innyco20100122425

Skelton, C. (n.d.). Goss v. Lopez. Retrieved April 30, 2018, from

https://supreme.justia.com/cases/federal/us/419/565/#annotation

“Warrington v. Tempe Elementary School District No. 3.” (n.d.). Retrieved April 29, 2018 from

https://caselaw.findlaw.com/az-court-of-appeals/1415411.html