Liability Instruction 2014

School LiabilitySchool LiabilityInstruction & SupervisionInstruction & Supervision

Sexual Harassment or AccusationsSexual Harassment or AccusationsTed Hayes, Senior Risk Manager

M3 Insurance Solutions08/27/14

What would a prudent parent do?What would a prudent parent do?

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What would a prudent parent do?What would a prudent parent do?

Acting as a careful or Acting as a careful or prudent parent prudent parent would act does would act does not mean acting as a careful or not mean acting as a careful or prudent teacher prudent teacher or or reasonable reasonable person person would act.would act.

It clearly means acting as a careful or It clearly means acting as a careful or prudent parent would act if faced with prudent parent would act if faced with the same situation or circumstances.the same situation or circumstances.

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Standard of care factors include:Standard of care factors include:

- # of students involved in the activity# of students involved in the activity- Nature of the activityNature of the activity- Age of the studentsAge of the students- Competency of the studentsCompetency of the students- Degree of skill and trainingDegree of skill and training- Nature/condition of equipmentNature/condition of equipment

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No matter the activity, ask the following questions:No matter the activity, ask the following questions:

Are our school activities Are our school activities ‘age appropriate’ ‘age appropriate’ for the students for the students involved?involved?

Do we provide the Do we provide the proper supervision proper supervision that is required for the that is required for the activity?activity?

Do we Do we understand the risks understand the risks that are inherent to the activity?that are inherent to the activity?

Have we developed Have we developed emergency plans emergency plans for each activity?for each activity?

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Have we identified the exposures and risks that our students will Have we identified the exposures and risks that our students will be exposed to?be exposed to?

Have we thought about how significant the risks are and if they are Have we thought about how significant the risks are and if they are worth taking?worth taking?

What will our school district do to reduce or eliminate these risks?What will our school district do to reduce or eliminate these risks?

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Have the identified risks materialized in the past? If so, how Have the identified risks materialized in the past? If so, how frequently and what was the result?frequently and what was the result?

What are other school districts doing to manage these same types What are other school districts doing to manage these same types of exposures?of exposures?

And possibly the most important question of all – if these students And possibly the most important question of all – if these students were my own children, what would I do?were my own children, what would I do?

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Your school district’s duty of care applies:Your school district’s duty of care applies:

- In the classroomIn the classroom- On school grounds or on the playgroundOn school grounds or on the playground- On excursions or field tripsOn excursions or field trips- Before and after school hoursBefore and after school hours- During the transportation of studentsDuring the transportation of students- Off school property if it is a school Off school property if it is a school

sponsored eventsponsored event

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What does it take for a plaintiff to successfully What does it take for a plaintiff to successfully sue the school district for damages?sue the school district for damages?

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Prove you Prove you owedowed them a legal duty. them a legal duty.

Prove you Prove you failedfailed in that duty. in that duty.

Prove they Prove they suffered damages suffered damages caused caused by your breach of duty.by your breach of duty.

What is negligence?What is negligence?

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• Failure to exercise ordinary care. Failure to exercise ordinary care. Ordinary care is Ordinary care is the degree of care which the majority of people the degree of care which the majority of people ordinarily use under the same or similar circumstances. ordinarily use under the same or similar circumstances.

• You fail ordinary care, when, without intending to do You fail ordinary care, when, without intending to do

any wrong, you do an act, or omit a precaution, which any wrong, you do an act, or omit a precaution, which an ordinary person should have foreseen.an ordinary person should have foreseen.

Lack of supervisionLack of supervision

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• As to his/her students, As to his/her students, a teacher occupies a a teacher occupies a position comparable to that of a parent position comparable to that of a parent in in regard to protecting children from harm/injury.regard to protecting children from harm/injury.

• This relationship requires a teacher to maintain This relationship requires a teacher to maintain a degree of supervision which an a degree of supervision which an ordinarily ordinarily prudent teacher prudent teacher would maintain under same or would maintain under same or similar circumstances.similar circumstances.


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• In arriving at your determination as to In arriving at your determination as to whether or not the teacher exercised whether or not the teacher exercised ordinary care, ordinary care, you may weigh and you may weigh and consider the age, intelligence and consider the age, intelligence and experience of the students which the experience of the students which the teacher knew in the classroom.teacher knew in the classroom.


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……may further weigh and consider the may further weigh and consider the teacher’s responsibilities, such as the teacher’s responsibilities, such as the curriculum required to teach, the daily curriculum required to teach, the daily schedule imposed, the number of schedule imposed, the number of students assigned to the classroom, the students assigned to the classroom, the equipment, devices and other objects in equipment, devices and other objects in the room.the room.


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• If evidence supports the teacher failed to If evidence supports the teacher failed to supervise in a manner an supervise in a manner an ordinary prudent ordinary prudent teacher would have maintained, then you teacher would have maintained, then you will find the teacher negligent.will find the teacher negligent.

• If you are not so satisfied, then you will If you are not so satisfied, then you will find the teacher not negligent.find the teacher not negligent.

Failure to Instruct or Failure to Instruct or Warn Warn

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• A teacher has the duty to instruct and to warn A teacher has the duty to instruct and to warn students in his/her custody of any dangers in the students in his/her custody of any dangers in the classroom which he/she know, or in the exercise of classroom which he/she know, or in the exercise of ordinary care, ought to have known. ordinary care, ought to have known.

To instruct them in methods which will protect them To instruct them in methods which will protect them from those dangers, whether the danger arises from from those dangers, whether the danger arises from equipment, devices, machines, or chemicals.equipment, devices, machines, or chemicals.

Failure to Instruct or Warn Failure to Instruct or Warn

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A failure to warn students A failure to warn students of such dangers, or to of such dangers, or to

instruct them on how to instruct them on how to avoid such danger, is avoid such danger, is

negligencenegligence..

Student InjuryStudent Injury

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When a student is injured on school premises orWhen a student is injured on school premises orduring a school sponsored event, during a school sponsored event, the student,the student,their parents, or both can initiate a lawsuit their parents, or both can initiate a lawsuit totorecover medical costs as a result of the student’srecover medical costs as a result of the student’sinjuries. injuries.

Additionally, the suit may include a request forAdditionally, the suit may include a request forpayment for pain and suffering as a result of thepayment for pain and suffering as a result of theinjury.injury.

Student InjuryStudent Injury

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• The suit will be made against the school district; The suit will be made against the school district; however, the teacher may be named in the however, the teacher may be named in the lawsuit.lawsuit.

• Attorneys representing the injured student/parents Attorneys representing the injured student/parents hope that the school district/teacher has allowed the hope that the school district/teacher has allowed the injury to occur or the teacher has failed to do injury to occur or the teacher has failed to do something that resulted in the injury. In other words, something that resulted in the injury. In other words, acts of commission or acts of omissionacts of commission or acts of omission. .

Proper SupervisionProper Supervision

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An important area of concern when dealing with An important area of concern when dealing with liability is proper supervision. liability is proper supervision.

Supervision is the first area and generally the Supervision is the first area and generally the most common area where recovery is sought. most common area where recovery is sought. An attempt may be made to show that the An attempt may be made to show that the school district/teacher failed to supervise school district/teacher failed to supervise adequately. adequately.


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• This may entail determining if there was not enough This may entail determining if there was not enough supervisors present or the supervisor(s) were doing an supervisors present or the supervisor(s) were doing an inappropriate job of supervision.inappropriate job of supervision.

• Number of students to be supervised. Number of students to be supervised. – There is no magic number There is no magic number as to how many students as to how many students

one teacher may adequately supervise. It goes one teacher may adequately supervise. It goes without saying that when the number of students without saying that when the number of students increase, so should the number of supervisors.increase, so should the number of supervisors.


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• Size of the area to be supervised Size of the area to be supervised – Are your teachers supervising a small classroom or a Are your teachers supervising a small classroom or a

large outdoor play area?large outdoor play area? • Age of the studentsAge of the students– Younger students may require more supervision.Younger students may require more supervision.

• Nature of the students Nature of the students – Are there special needs or handicapped students Are there special needs or handicapped students

involved?involved?


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• Nature of the activity Nature of the activity – Are the students quietly working at their desks Are the students quietly working at their desks

or are they using power tools in a technology or are they using power tools in a technology class?class?

• Line of SightLine of Sight– Teachers should be positioned so they can see Teachers should be positioned so they can see

the entire area; avoid turning their back to the the entire area; avoid turning their back to the majority of the students.majority of the students.


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• Do not leave students in a Do not leave students in a hazardous area hazardous area unsupervised for any amount of time.unsupervised for any amount of time.

• Keep supervision Keep supervision mobile and moving mobile and moving around around the supervised area.the supervised area.

Instructions, Warnings, InspectionsInstructions, Warnings, Inspections

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• In many liability casesIn many liability cases, , recovery will be attempted to recovery will be attempted to show that the school district/teacher failed to show that the school district/teacher failed to properly instruct or warn students of a hazard or properly instruct or warn students of a hazard or danger. danger.

• Recovery may also attempt to show that a piece of Recovery may also attempt to show that a piece of equipment failed and that failure was because the equipment failed and that failure was because the school district/teacher failed to properly inspect or school district/teacher failed to properly inspect or maintain the equipment to ensure that it was in maintain the equipment to ensure that it was in proper working condition. proper working condition.


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• Have complete instructions been given? Have complete instructions been given? – It doesn’t matter if it is an activity in gym class or It doesn’t matter if it is an activity in gym class or

instructions on how to use a table saw - proper instructions on how to use a table saw - proper instructions must be given to all students involved.instructions must be given to all students involved.

• What books, manuals, and instructional papers have What books, manuals, and instructional papers have been used to serve as the basis for these instructions? been used to serve as the basis for these instructions? – If it involves using a piece of equipment or machinery, If it involves using a piece of equipment or machinery,

always utilize the instructional materials provided by always utilize the instructional materials provided by the equipment manufacturer.the equipment manufacturer.

Instructions, Warnings, Inspections

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• Were safety tests used with a mandatory 100% grade? Were safety tests used with a mandatory 100% grade? – Only when students answer all questions correctly Only when students answer all questions correctly

can they be allowed to used certain types of can they be allowed to used certain types of equipment or machinery.equipment or machinery.

• Are written rules posted on and around the equipment Are written rules posted on and around the equipment or machinery?or machinery?

• The nature of the activity relative to the students that The nature of the activity relative to the students that are to perform it.are to perform it.


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• How safe is the activity?How safe is the activity?

• Have all recommended safety measures been Have all recommended safety measures been taken?taken?

• Never force a student to do something they are Never force a student to do something they are scared of or do not want to do.scared of or do not want to do.

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Sexual Harassment Sexual Harassment or Accusationsor Accusations

Sexual Harassment or AccusationsSexual Harassment or Accusations

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Defined as an unwelcomed behavior of a sexual nature Defined as an unwelcomed behavior of a sexual nature that interferes with your student’s ability to learn or to that interferes with your student’s ability to learn or to

participate in school activities.participate in school activities.

May range from mildly annoying behavior to something May range from mildly annoying behavior to something as serious as sexual assault.as serious as sexual assault.

Even if allegations prove to be false, reputations/careers Even if allegations prove to be false, reputations/careers may be permanently damaged and bad feelings may may be permanently damaged and bad feelings may

develop between the school and the community.develop between the school and the community.

What Constitutes Sexual Harassment?What Constitutes Sexual Harassment?

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Touching a student’s clothing or placing Touching a student’s clothing or placing your hands in a student’s pockets.your hands in a student’s pockets.

Unwelcome physical contact or gestures.Unwelcome physical contact or gestures.

Offensive communications - letters, Offensive communications - letters, emails, phone calls.emails, phone calls.

Displaying offensive materials such as Displaying offensive materials such as posters, emails, cartoons.posters, emails, cartoons.

What Constitutes Sexual Harassment?What Constitutes Sexual Harassment?

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Asking questions of a sexual nature.Asking questions of a sexual nature.

Sexual comments or jokes.Sexual comments or jokes.

Controlling Sexual HarassmentControlling Sexual Harassment

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Outside of the normal school day, avoid being Outside of the normal school day, avoid being alone with students in your classroom – alone with students in your classroom –

especially opposite sex students.especially opposite sex students.

If a teacher must be alone with a student before If a teacher must be alone with a student before or especially after school, ensure that or especially after school, ensure that administration is aware of this meeting.administration is aware of this meeting.


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Never meet with a student alone, behind a closed door.Never meet with a student alone, behind a closed door.

If your door window is covered with paper or If your door window is covered with paper or decorations – remove them.decorations – remove them.

Keep the meeting room door open whenever possible. Keep the meeting room door open whenever possible. If If there are privacy or confidentiality concerns, move the there are privacy or confidentiality concerns, move the meeting to the office area where other school meeting to the office area where other school employees are present.employees are present.


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Meet with students in open areas whenever possible.Meet with students in open areas whenever possible.

Hold your meetings in a conference room in the main Hold your meetings in a conference room in the main office area, the cafeteria, or a classroom that has an office area, the cafeteria, or a classroom that has an adjoining door to another classroom.adjoining door to another classroom.

Don’t ever physically touch a student in a way that could Don’t ever physically touch a student in a way that could be viewed as inappropriate by others. be viewed as inappropriate by others. This includes This includes rubbing a student’s neck/shoulders, tickling, hugging or rubbing a student’s neck/shoulders, tickling, hugging or any other body contact.any other body contact.


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Never display sexually suggestive materials in the Never display sexually suggestive materials in the classroom such as videos or Internet images.classroom such as videos or Internet images.

Don’t make sexually or physically suggestive gestures Don’t make sexually or physically suggestive gestures about anyone in front of students.about anyone in front of students.

Avoid personal meetings with students off school Avoid personal meetings with students off school grounds. grounds. It’s just not a good practice to meet with It’s just not a good practice to meet with students for a meal, even in a public restaurant settingstudents for a meal, even in a public restaurant setting


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As a teacher, refrain from counseling students in non-As a teacher, refrain from counseling students in non-academic or personal matters. academic or personal matters. Don’t ever have Don’t ever have conversations with students that are considered conversations with students that are considered romantic or sexual in nature.romantic or sexual in nature.

As a school employee, don’t discus your personal As a school employee, don’t discus your personal problems with your students.problems with your students.

Never give students hall passes to come to your Never give students hall passes to come to your classroom for non-school related matters.classroom for non-school related matters.


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Don’t lend your vehicle to students or transport students Don’t lend your vehicle to students or transport students in your personal vehicle in your personal vehicle without the knowledge of without the knowledge of school administration and the permission of the school administration and the permission of the student’s parent/guardian.student’s parent/guardian.

Never entertain students in your home unless it is an Never entertain students in your home unless it is an approved school-sponsored event. approved school-sponsored event. The student’s The student’s parents/guardian must have full knowledge of the parents/guardian must have full knowledge of the activity. Additionally, it is never a good idea to have a activity. Additionally, it is never a good idea to have a student come to your home alone.student come to your home alone.

Education

Liability Instruction 2014