Group Presentation Sovreign Immunity & School law

Group 6: Jason Bloom, Bernadette Harris, Rebecca Raulerson

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Tools for Success

Key Terms - Tort

WHAT IT IS

TORT A wrongful act, not

including a breach of contract or trust, that results in injury to another's person, property, reputation, or the like, and for which the injured party is entitled to compensation.

WHAT IT IS NOT

Key Terms - Abrogate

WHAT IT IS

ABROGATE

to put aside; put an end to, to repeal or to abolish.

WHAT IT IS NOT

Key Terms – Ministerial Act

WHAT IT IS

MINISTERIAL ACT

Duty imposed by law involving obedience to instructions.

WHAT IT IS NOT

Key Terms – Discretionary Act

WHAT IT IS

DISCRETIONARY ACT An act that requires one

to exercise judgment or to make a decision.

EXAMPLE FROM CHAPTER 4

School boards have discretionary power to employ a certain teacher, select a location for a new school, etc…

WHAT IT IS NOT

Sovereign Immunity

IN THE DARK AGES

“The King can do no wrong”

MODERN TIMES

Sovereign Immunity

WHAT THE BOOK SAYS

“School districts, as agencies of the state, have historically been immune from tort liability. As a general rule, common law asserts that government is inherently immune unless the legislature abrogates the privilege” (632).

WHAT IT MEANS

Basically, school districts are considered a government agency. Therefore, school districts are immune to liability unless the court abolishes or reverses immunity.

Example of Abrogation of Sovereign ImmunityMolitor v. Kaneland

Supreme Court of Illinois, 1959

Facts:Thomas Molitor was injured when his

bus driver ran off the road and hit a culvert . As a result of the driver’s negligence, the bus exploded.



Procedural History: In 1898, the Supreme Court of Illinois

extended the sovereign immunity to school districts through Kinnare v. City of Chicago.

A worker fell off a roof of a school building and died because the district did not provide proper scaffolding.

However, the court decided that the state was not liable to compensate acts of negligence.



ISSUES: Should a school district be immune from

liability for the personal injury inflicted on a student while being transported by a district owned and operated bus?

HOLDINGS:

YES!



RATIONALE: The rule of school immunity is unjust and has

no rightful place in today’s society.

DISPOSITION: School immunity was abolished.

However, it was restored in 1965 through the Governmental Employees Tort Immunity Act, which protected government employees from liability arising from operation of government.

School Board is Entitled to Governmental ImmunityYanero v. Davis

Supreme Court of Kentucky, 2001

Facts: Ryan Yanero was hit in the head with a baseball

during batting practice. He was not wearing a helmet.

The district had a written policy that required helmets.

Parents sued the Jefferson County Board of Education and the athletic director, Allen Davis.

Parents claimed negligence because Ryan was not required to wear a helmet and no one sought medical attention after he was stuck by the baseball.

As a side note, Ryan had been playing baseball for 11 years.



Procedural History:

Sovereign Immunity: Common law of England embraced in the

United States to protect states from tort liability unless the state has given consent or waived immunity.

Governmental Immunity: Stems from Sovereign Immunity. Contends

that courts should not pass judgment on policy decisions made by members of coordinate branches.



Official Immunity: Protects a government official’s discretionary

acts only if his/her acts are not wrongful.

Protects from negligence if:

1.Exercised judgment2. In good faith3.Fell within the scope of the employee’s

authority.

Here is where is gets tricky: There is no immunity for a ministerial act.



Procedural History: Rose v. The Council for Better Education,

Inc. established a precedent that a school board is an agency of the state government.



ISSUES:

Is the County Board of Education liable to tort?

HOLDINGS:

NO!



RATIONALE: Jefferson County Board of Education was performing a governmental function and entitled to protection of governmental immunity. Therefore they could not be held liable for the establishment or lack thereof requiring students to wear helmets.



DISPOSITION:

The Supreme Court of Kentucky affirmed the lower Court’s decision that Jefferson County School Board was not liable.

However, they reversed the decision concerning Becker and Davis and remanded it for further discussion in the lower court.



WHY? As coaches, they were performing a

ministerial act and were found negligent for not enforcing the district policy, which required students to wear helmets.

Davis should move to Virginia

Lentz v. MorrisSupreme Court of Virginia, 1988

Facts: A teacher let some high school students play tackle football without protective gear. A student sustained injuries when he was tackled “with great force and violence.”

Davis should move to Virginia

Lentz v. MorrisSupreme Court of Virginia, 1988

Procedural History: The court applied the Messina Test (Messina v.

Burden), which includes the following factors:1. Nature of the function the employee performs2. Extent of governmental entity’s interest and

involvement in the function.3. Degree of control and direction exercised over the

employee.4. Did the alleged wrongful act involve judgment and

discretion?

He passed the test!

1. Nature of the function the employee performs

2. Extent of governmental entity’s interest and involvement in the function.

3. Degree of control and direction exercised over the employee.

4. Did the alleged wrongful act involve judgment and discretion?

Employee was a teacher performing a vitally important function.

The school board as a government agency has interest and involvement over the employee.

The school’s principal maintains control and direction of the teacher.

The decision of what students should wear involves judgement and discretion by the teacher.

In other words…

The teacher was entitled to immunity and was not liable for the injuries the student sustained when he was tackled “with great force and violence.”

Abrogation of Immunity

General Rules of Abrogation1. The state must consent2. Except when the state declines consent and are

subject to liability.3. When a state is subject to tort liability, the state is

immune for acts and omissions constituting (a) the exercise of a judicial or legislative function or (b) or the exercise of an administrative function involving determination of a governmental policy.

4. Consent to suit and repudiation of general tort do not establish liability for an act or omission that is privileged or not tortuous.

Abrogation of Immunity

General Rules of Abrogation (in English)

1. The state must consent2. Declining consent does not absolve immunity if

the state is liable.3. Even if the state is liable, the state is immune

regarding discretionary acts (judicial, legislative and administrative functions to determine policy)

4. If a state consents to suit, this does not establish liability for something that does not cause harm or injury.

Discretionary Functions

Restatement (Second) of Torts 1. How important to the public is it that this

function be performed?2. What is the level of the government?3. Is this a function peculiarly sensitive to the

imposition of liability?4. How much financial responsibility will fall on the

officer?5. Is this action certain or substantially certain to

impose damage on some people?6. Is it a loss that can be easily borne by the

injured party?7. Could he have insured against it?

Many states havewaived immunity

if the district purchases

liability insurance;

If no insurance is purchased, then immunity

remains.

School districts have the authority to purchase insurance that may have the same effect as a waiver of immunity, to the extent of the insurance proceeds.

In this case, the state does not imply a waiver, since their intent is clear by its authorization of tax levees to pay for insurance premiums.

This is consistent with legislative theory that a claim against a school district should be paid in the same manner as a claim against a private party.

Student was thrown from the back of a pickup truck delivering wrestling mats from one school to another. Although the school had an insurance policy, it did not cover this claim, so the school motioned for a summary judgment (a request by the defendant that asserts that the plaintiff has not raised a “genuine issue” that renders going to trial) for sovereign immunity. The court ruled in favor of the district.

Many states, when reluctant to abolish their sovereign immunity, will settle tort actions based on the activity that was being performed by the school or district when an injury occurred.

When districts settle torts, they operate in a dual capacity: performing their normal functions that are strictly “governmental” (governing their schools), as well as taking on a proprietary function similar to a private corporation. A proprietary function is defined as the capacity of a municipality to enter into business ventures, or perform discretionary acts that are in the best interest of its citizens)

Not normally required by law These are functions not in the normal

scope of public school operation While courts usually hold schools liable for

events where admission is charged, they do not usually apply the same standard to DISTRICTS! (ie: spectator is injured at a school athletic event, courts do not impose liability on the district, even though fee was charged) Reasoning? Just because a fee was charged does not mean it was a for-profit transaction.

Sometimes districts must “wrestle” with distinguishing between what is a proprietary and what is a governmental function.

The test: whether the act is for the common good of all, with no element of monetary profit…so…

if the activity is educational and for the common good, then any profit made is incidental and the activity is defined as governmental (part of the governmental function of the school).

Of course not! Some courts assert that because

schools have no legitimate function other than to govern themselves, they cannot legally perform proprietary functions.

Licensee: one who uses a premises by permission or operation of law, but without expressed invitation (but NOT a trespasser)

Invitee: one who enters premises by expressed or implied invitation of owner

Districts owe a greater degree of liability, and care, to the invitee.

A property owner does not owe a particular duty to a licensee, unless they commit willful disregard for their safety.

Invitee TEST for LIABILITY:

1. Either a public invitee or business visitor

2. Public invitee has been invited to enter or remain on the land for an event that is open to public

3. Business visitor is invited to enter or remain on land for business dealings with the owner.

Plaintiff, Flora Tanari was knocked down by students engaged in horseplay at a high school football game, and was injured. The courts decided she was a licensee and the district performed no willful misconduct, although she alleged negligence in supervision. Her claim was denied.

It’s time for…

THE WEAKEST LINK!

“ the existence or creation of a dangerous, unsafe, or offensive condition which is likely to cause injury, harm , or inconveniences to others.”

A dangerous condition must be created by the school district for nuisance to exist. Kansas School Board

(p. 653)

Nuisance

Plaintiff argued that snow that was shoveled into school parking lot (government immunity) was a nuisance.

“To establish a claim of intentional nuisance against a governmental agency (school building) a plaintiff must show that there is a condition which is a nuisance and that agency intended to create that condition”.

Because the snow was moved (action) and did not fall directly, then school was not held liable.

Section 1983 is an outlet in obtaining damages and equitable relief against state and local agencies and officials who violate the constitutional rights of a person.

Major purpose is to “compensate persons for injuries that are caused by deprivation of constitutional rights.”

Under Pembaur v. Cincinnati in 1986, the Supreme Court held that a school board cannot be held liable unless the board has denied the plaintiff his or her rights.

If a school/team does not write the IEP correctly as mandated by IDEA, school is held liable for the inadequacies within the IEP.

Individual Liability

Individuals in the school system are held liable when they have demonstrated “lack of good faith” and violated someone’s constitutional rights.

If a teacher breaks an IEP without permission from the team and parents, the individual is liable for the changes made – positive or negative.

Wood V. Strickland

Plaintiffs spiked punch during school social event and admitted to crime. School administrators expelled students for the rest of the term, which was 3 months of school

The plaintiff then accused the school administrators that they were not acting in “good faith” and the punishment did not fit the crime.

Court of Appeals upheld that the decision stood because the defendants did act “in good faith”

11th Amendment Immunity and Local School District

Duval County could be considered an “arm” of the state of Florida, but does the state assume its liability when Duval County is sued?

11th Amendment Immunity and Local School Districts

Whether the local district does fall under 11th amendment immunity is based on the following criteria: 1) political and financial autonomy 2) whether the school district is

concerned with primarily local problems and not state problems

3)does the school board have the authority to sue and be sued in its name

4) whether the school district has the right to own property.

11th Amendment and Local School Districts

When a district can elect its school board member by popular vote, can own property, and has local funding, a school district is considered local and NOT a state entity.

Duval County can be sued and the state of Florida not assume the liability.

Who really has immunity?

http://www.youtube.com/watch?v=8hGvQtumNAY&feature=related

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Group Presentation Sovreign Immunity & School law