Tort Liability & Risk Management

DR. ERNIE WALKER

Tort
Tort: A civil wrong that results in personal injury or property damage, the compensation for which serves sound social policy. Tort = twisted or wrong

In other words
A tort is when one person or institution has upset social equity by injuring another person or damaging the economic interests of another person.

The Purpose of Policy

The purpose of policy should be to produce benefit, good, or happiness, and to prevent evil, mischief, or unhappiness to the individuals whose interests are being considered.

The Purpose of Policy

Two basic principles:
Security Equity

The primary purpose of district policy should be to promote the principles of security and equity.

Policy and Tort

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. Balance SystemSimply means that Tort Liability is in place to assure that schools and officials do everything within their power to place safety and security is at the forefront of everyones thinking

Negligence
Negligence: failure to use reasonable care that results in injury to another. 5 Elements to the tort of negligence - all five must be present for negligence to have occurred.

5 Elements of Negligence
1. 2. 3. 4. 5. Existence of a Duty Breach of a Duty Cause-In-Fact Causation Proximate Causation Damages

1. Existence of a Duty
What is a duty?
Humans - Duty to NOT engage in behaviors that would result in bodily harm to others or cause damage to their property. Educators - in loco parentis What would the parents do?
Gathwright v. Lincoln Insurance Company (1985) - Educators and school systems DO NOT have a duty to shelter a growing child from every possible danger.

2. Breach of Duty
Breach: when one party fails to live up to his/her identified duty. Did the teacher fail to perform his/her duty?
Would a reasonably prudent teacher have exercised better care?

3. Cause-In-Fact Causation
The action or omission determined to amount to a breach of a duty must be a cause-in-fact of the injury suffered.
but for - the injured person would not have suffered the injury but for the breach of duty.

4. Proximate Causation
The idea of -- Foreseeability Was the injury foreseeable to the breacher at the time of the breach? Would a reasonably prudent person have been able to foresee the injury?

5. Damages
Damages: the physical or property injuries complained of. The goal is to compensate victims for their losses.
Medical Bills Wages Pain and Suffering Loss of Future Wages Loss of Companionship (in cases of death) Emotional Distress

Defenses to Negligence
1. 2. 3. 4. 5. Contributory Negligence Comparative Negligence Assumption of Risk Sovereign Immunity Statutory Immunity

Contributory Negligence
If the plaintiff is AT ALL negligent, the plaintiff will take nothing. 99% Defendant Responsible 1% Plaintiff Responsible
PLAINTIFF TAKES NOTHING!!

Comparative Negligence
Seeks to proportion financial responsibility based on the percentage of the damages due to each partys negligence.
50% D - 50% P
Plaintiff only receives 50%

HOWEVER -- If the plaintiff is more than 50% responsible, they receive NOTHING!

Assumption of Risk
The Plaintiff ASSUMED the risk of the Defendant Implied AssumptionCases where the student assumes the liability for an injury Difficult to defend since minors cannot assume risk (sports such as football, soccer, etc.). Express Assumption-Usually when parents sign liability waivers, hold-harmless, consent, indemnity forms or other statements indicating they assume responsibility ahead of time (school trips, activities, etc.)

Sovereign Immunity
Sovereigns are immune to lawsuits in their own courts. Why would the queen allow you to sue her in one of her own courts?? You cant sue the United States for Negligence, You cant sue a State for Negligence because the United States is Sovereign. Schools are sovereign, its employees are not!!

Exception - when a school acts as a business, schools have a DUTY to keep the school safe.

Statutory Immunity
Some states grant immunity to teachers, principals, etc. Dont count on this as a defense -- Almost all have loop holes.

Intentional Torts
Intentional Torts in Education:
1. 2. 3. 4. Battery Assault False Imprisonment Intentional Infliction of Emotional Distress

1. Battery
Battery: An intentional act that causes harmful or offensive bodily contact. Physical attack, beating, stabbing, etc.

The batterer must commit the act intentionally -however, he/she need not intend the outcome or victim.
Throwing a book and hitting Sally Throwing a punch in anger and hitting the closest kid.

2. Assault
An attempted battery or threat of battery.
Attempted battery, fails to do so, but creates imminent apprehension of harmful of offensive contact. Reasonable person - was the person put in a situation of imminent apprehension?

False Imprisonment
One persons intentionally confines another to a fixed space for and unreasonable amount of time without legal justification.

As long as the person confining is acting in an educational role, [in loco parentis], you can reasonably confine a student for a reasonable amount of time.

Intentional Infliction of Emotional Distress

Most extreme situations Defendant has done something so outrageous that the conduct leads one to believe that it was intended to intentionally interfere with the plaintiffs peace of mind.

Managing the Risk

1. Insurance
2. Behavior Regulation or Modification

3. Facility Inspection and Maintenance

Insurance
Liability InsuranceAll teacher should have some type of liability insurance. This may be acquired through Professional Organizations, as an add-on to your homeowners insurance, other sources of insurance.

Behavior Regulation
Plans for Daily Activities Off-Campus Trips Athletic Activities
Source examples: School Board Policies, School Policies (student handbook).

Facility Inspection & Maintenance

Principals are responsible for maintaining their campus and buildings. However, teachers are expected to report any item(s) in their classroom or area of instruction that may be potentially dangerous or might cause injury to students. Failure to do so could be considered negligence. Inspect your area on a daily basis! As buildings age, this is more important. Become fully familiar with your schools crisis management plan.

Student-on-Student Violence
Are schools liable for student-on-student violence? Buffys and Heathers Fight Are the 5 elements of negligence evident?