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School Law IssuesSchool Law Issues

LiabilityLiability

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SOVERIGN IMMUNITYSOVERIGN IMMUNITYSovereign ImmunitySovereign Immunity is an English Common is an English Common

Law concept.Law concept.The King Can Do No Wrong!The King Can Do No Wrong!In about half of the states governments are In about half of the states governments are

exempt from tort liability by soveirign exempt from tort liability by soveirign immunity.immunity.

Since Louisiana Law is based upon the Since Louisiana Law is based upon the Napoleonic Code, Sovereign Immunity is not Napoleonic Code, Sovereign Immunity is not so strong.so strong.

A A torttort is a is a civilcivil wrong in which one suffers a wrong in which one suffers a loss as a result of improper conduct of othersloss as a result of improper conduct of others

A tort can be based upon an A tort can be based upon an actionaction or an or an inactioninaction..

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• United States ConstitutionUnited States Constitution– Amendment XIAmendment XI– The judicial power of the United States shall The judicial power of the United States shall

not be construed to extend to any suit in law not be construed to extend to any suit in law or equity, commenced or prosecuted against or equity, commenced or prosecuted against one of the United States by citizens of another one of the United States by citizens of another state, or by citizens or subjects of any foreign state, or by citizens or subjects of any foreign state. state.

– This amendment was a direct of the case of This amendment was a direct of the case of Chisholm v. GeorgiaChisholm v. Georgia (1793), 2 U.S. 419 where (1793), 2 U.S. 419 where a citizen of South Carolina sued Georgia.a citizen of South Carolina sued Georgia.

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42 U.S.C. 2000d-7• “…A State shall not be immune under the

Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.” (Emphasis added)

• Effective October 21, 1986

• Bennett-Nelson v. La. Bd. of Regents U.S. Bennett-Nelson v. La. Bd. of Regents U.S. District Court for the Western District of District Court for the Western District of

LouisianaLouisiana

• Bennett-Nelson v. La. Bd. of Regents, 431 F.3d Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 2005 U.S. App. LEXIS 25603 (5th Cir. La., 448, 2005 U.S. App. LEXIS 25603 (5th Cir. La.,

2005)2005)

• Louisiana Board of Regents, et al., Petitioners v. Wendy Louisiana Board of Regents, et al., Petitioners v. Wendy Renee Bennett-Nelson, et al. Renee Bennett-Nelson, et al.

No. 05-1102. No. 05-1102. SUPREME COURT OF THE UNITED STATES SUPREME COURT OF THE UNITED STATES

Petition for writ of certiorari to the United States Court of Petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit denied. Appeals for the Fifth Circuit denied.

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Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448 (11/2005)

Two hearing impaired students at Louisiana Tech University Two hearing impaired students at Louisiana Tech University ("the University"), Wendy Renee Bennett-Nelson and Joy Marie ("the University"), Wendy Renee Bennett-Nelson and Joy Marie Boykin ("the appellants"), brought this action under Title II of the Boykin ("the appellants"), brought this action under Title II of the Americans with Disabilities Act of 1990 ("ADA") and §504 of the Americans with Disabilities Act of 1990 ("ADA") and §504 of the Rehabilitation Act of 1973. The appellants alleged that the Rehabilitation Act of 1973. The appellants alleged that the University denied them equal access to education by failing to University denied them equal access to education by failing to provide educational aids and services, such as sign language provide educational aids and services, such as sign language interpreters and note takers, in a timely and effective manner. interpreters and note takers, in a timely and effective manner. The district court dismissed the appellants’ claims, holding that The district court dismissed the appellants’ claims, holding that they were barred by the immunity from suit in the federal courts they were barred by the immunity from suit in the federal courts granted to Louisiana by the Eleventh Amendment. On appeal, granted to Louisiana by the Eleventh Amendment. On appeal, the appellants contend (1) that the University has waived its the appellants contend (1) that the University has waived its immunity from suit under §immunity from suit under § 504 of the Rehabilitation Act by 504 of the Rehabilitation Act by accepting federal funding; and (2) that Congress has validly accepting federal funding; and (2) that Congress has validly abrogated Eleventh Amendment immunity from suit under Title abrogated Eleventh Amendment immunity from suit under Title II of the ADA. We agree that the University, as a recipient of II of the ADA. We agree that the University, as a recipient of federal financial assistance, has waived its Eleventh federal financial assistance, has waived its Eleventh Amendment immunity. We therefore need not go further to Amendment immunity. We therefore need not go further to address the abrogation issue. Accordingly, we REVERSE and address the abrogation issue. Accordingly, we REVERSE and REMAND for further proceedings.REMAND for further proceedings.

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• IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT-- November 28, 2005

• WENDY RENEE BENNETT-NELSON; JOY MARIE BOYKIN, Plaintiffs - Appellants,

versus

• LOUISIANA BOARD OF REGENTS, Etc.; ET AL., Defendants,

• Appeal from the United States District Court for the Western District of Louisiana, Shreveport USDC No. 5:01-CV-2166

• “We agree that the University, as a recipient of federal financial assistance, has waived its Eleventh Amendment immunity. We therefore need not go further to address the abrogation issue. Accordingly, we REVERSE and REMAND for further proceedings.” (page 2)

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School Liability IssuesSchool Liability Issues

• Generally, legal actions for Generally, legal actions for injury to a student or another injury to a student or another person that are filed against a person that are filed against a school board or a school school board or a school employee arise from:employee arise from:

– negligent supervision;negligent supervision;– intentional acts; orintentional acts; or– premises defects.premises defects.

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Liability IssuesLiability Issues

Student SupervisionStudent Supervision

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Reasonable Reasonable SupervisionSupervision

• School personnel School personnel supervising school children supervising school children must exercise reasonable must exercise reasonable supervision over those supervision over those children commensurate with:children commensurate with:– the children’s agethe children’s age– the children’s abilities, the children’s abilities,

andand– the attendant the attendant

circumstances.circumstances.

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Higher Degree of CareHigher Degree of Care

• A greater degree of care A greater degree of care must be exercised if the must be exercised if the student:student:– is required to use or come is required to use or come

in contact with an in contact with an inherently dangerous inherently dangerous object, or object, or

– to engage in an activity to engage in an activity where it is reasonably where it is reasonably foreseeable that an foreseeable that an accident or injury may accident or injury may occur.occur.

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Constant Supervision is Not RequiredConstant Supervision is Not Required

• ““Constant supervision of Constant supervision of all students is not all students is not possible nor required for possible nor required for educators to discharge educators to discharge their duty to provide their duty to provide adequate supervision.”adequate supervision.”Adams v. Caddo Parish Adams v. Caddo Parish School Bd., 25,370 (La School Bd., 25,370 (La App. 2 Cir. 1/19/94); 631 App. 2 Cir. 1/19/94); 631 So.2d 70So.2d 70

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Teacher LiabilityTeacher Liability• A teacher is not liable in damages A teacher is not liable in damages

unless it is shown that the teacher:unless it is shown that the teacher:– might have prevented the act might have prevented the act

that caused the damage by that caused the damage by exercising the degree of exercising the degree of supervision required under the supervision required under the circumstances, and did not do circumstances, and did not do so; so;

– was negligent in failing to was negligent in failing to provide the required provide the required supervision; and supervision; and

– that there was a causal that there was a causal connection between the connection between the teacher’s lack of supervision teacher’s lack of supervision and the accident. and the accident.

• LEONARD W. WALLMUTH, ET AL. VS. RAPIDES LEONARD W. WALLMUTH, ET AL. VS. RAPIDES PARISH SCHOOL BOARD, ET AL. 813 So. 2d 341 PARISH SCHOOL BOARD, ET AL. 813 So. 2d 341 (Sup. Ct. of La. 2002)(Sup. Ct. of La. 2002)

• 3 students attacked another in locker room. 3 students attacked another in locker room. • District court put 100% liability on the school.District court put 100% liability on the school.• The court of appeals changed to 70% to school and 30% The court of appeals changed to 70% to school and 30%

to students because of lack of supervision by the coach.to students because of lack of supervision by the coach.• The key to the school liability was the testimony that the The key to the school liability was the testimony that the

coach was seldom in the locker room and when he was, coach was seldom in the locker room and when he was, no problems ever occurred!!!!!!!no problems ever occurred!!!!!!!

• The Louisiana Supreme Court reversed the decision The Louisiana Supreme Court reversed the decision and removed the school from liability because there and removed the school from liability because there was no prior knowledge of problems in the locker was no prior knowledge of problems in the locker room.room.

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• Injury from horseplay between Injury from horseplay between discerning students which, at some discerning students which, at some point, may pose an unreasonable risk point, may pose an unreasonable risk of harm to the participants, does not of harm to the participants, does not automatically and of itself render the automatically and of itself render the individual supervising them liable.individual supervising them liable.

Student HorseplayStudent Horseplay

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School Board LiabilitySchool Board Liability

• The duty to provide The duty to provide reasonable, competent reasonable, competent supervision appropriate supervision appropriate to the age and abilities to the age and abilities of the children and the of the children and the attendant circumstances attendant circumstances does not make the does not make the school board the insurer school board the insurer of the safety of school of the safety of school children.children.

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School Board LiabilitySchool Board Liability• Before a school board can Before a school board can

be found to have breached be found to have breached the duty to adequately the duty to adequately supervise the safety of supervise the safety of students, the risk of students, the risk of unreasonable injury must be:unreasonable injury must be:– foreseeable, foreseeable, – constructively or constructively or

actually known, and actually known, and – preventable if the preventable if the

requisite degree of requisite degree of supervision had been supervision had been exercised.exercised.

• You don’t always get sued whey the You don’t always get sued whey the school or teachers ‘mess up’!!!school or teachers ‘mess up’!!!

• You sometimes get sued when there is no You sometimes get sued when there is no way you could have foreseen the danger!!!way you could have foreseen the danger!!!

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Liability IssuesLiability Issues

Vicarious LiabilityVicarious Liability

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What is Vicarious Liability?What is Vicarious Liability?

• Vicarious liability is indirect Vicarious liability is indirect legal responsibility.legal responsibility.

• An example of vicarious An example of vicarious liability is an employer’s liability is an employer’s liability for the acts of an liability for the acts of an employee.employee.

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Student ActionsStudent Actions• A school board is not A school board is not

vicariously liable for the vicariously liable for the actions of its students. actions of its students. – La. Civil Code article La. Civil Code article

2320 requires 2320 requires independent fault on the independent fault on the part of the school board. part of the school board.

– http://www.legis.la.gov/Legis/Law.aspx?d=109383

• The school board is only The school board is only liable for damages caused liable for damages caused by students under their by students under their supervision when the school supervision when the school board or school personnel board or school personnel could have prevented the could have prevented the act which caused the act which caused the damages, and did not do so.damages, and did not do so.

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Vicarious Liability for Vicarious Liability for Employee ActionsEmployee Actions

• An employer is liable for An employer is liable for its employee’s tortious its employee’s tortious acts in the exercise of the acts in the exercise of the functions in which they functions in which they are employed. are employed.

• However, an employer is However, an employer is not vicariously liable not vicariously liable merely because an merely because an employee commits an employee commits an intentional tort on the intentional tort on the employer's premises employer's premises during work hours.during work hours.

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Vicarious Liability for Vicarious Liability for Employee ActionsEmployee Actions

• Four factors are considered in determining whether the Four factors are considered in determining whether the employer is liable for its employee's tortious acts. Those employer is liable for its employee's tortious acts. Those factors are whether the employee’s act:factors are whether the employee’s act:

– occurred on the employer's premises;occurred on the employer's premises;

– occurred during the hours of employment; occurred during the hours of employment;

– was primarily employment rooted; and, was primarily employment rooted; and,

– was reasonably incidental to the performance of the was reasonably incidental to the performance of the employee's duties. employee's duties.

• It is not essential that all four factors be present before It is not essential that all four factors be present before

liability is found.liability is found.

• FAYE HUEY, and as NATURAL TUTRIX of the MINOR, FAYE HUEY, and as NATURAL TUTRIX of the MINOR, LASHAUN LATRICE THOMPSON, Plaintiff-Appellant Versus LASHAUN LATRICE THOMPSON, Plaintiff-Appellant Versus CALDWELL PARISH SCHOOL BOARD, Defendant-AppelleeCALDWELL PARISH SCHOOL BOARD, Defendant-Appellee

COURT OF APPEAL OF LOUISIANA, SECOND CIRCUITCOURT OF APPEAL OF LOUISIANA, SECOND CIRCUIT

109 So. 3d 924; 2013109 So. 3d 924; 2013

• Student became pregnant after getting of school bus for an Student became pregnant after getting of school bus for an alleged doctor’s appointment using false notes and having a alleged doctor’s appointment using false notes and having a friend pretend to be the mother for verification. She meet with friend pretend to be the mother for verification. She meet with an adult who was sentenced to 10 years for carnal knowledge an adult who was sentenced to 10 years for carnal knowledge of a juvenile.of a juvenile.

• Mother sued the school board and the board was awarded a Mother sued the school board and the board was awarded a “Summary Judgment” and the mother sued.“Summary Judgment” and the mother sued.

• The Court of Appeals affirmed the summary judgment! The Court of Appeals affirmed the summary judgment!

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S.J., ET AL. VERSUS LAFA YETTE PARISH SCHOOL S.J., ET AL. VERSUS LAFA YETTE PARISH SCHOOL BOARD BOARD

41 So. 3d 1119 (2010)41 So. 3d 1119 (2010)

• The student alleged that the school board was negligent The student alleged that the school board was negligent for injuries she sustained when she was sexually for injuries she sustained when she was sexually assaulted walking home after attending an obligatory, assaulted walking home after attending an obligatory, after-school behavior modification class.after-school behavior modification class.

• A trial court held that a school board was not liable in this A trial court held that a school board was not liable in this negligence action.negligence action.

• Third Circuit, Parish of Lafayette (Louisiana), reversed Third Circuit, Parish of Lafayette (Louisiana), reversed and awarded the student $ 100,000 and her mother $ and awarded the student $ 100,000 and her mother $ 20,000. The school board sought certiorari review.20,000. The school board sought certiorari review.

• On appeal the Supreme Court reversed the decision, On appeal the Supreme Court reversed the decision, saying that the student ignored the opportunity to call for saying that the student ignored the opportunity to call for a ride or find other modes of transportation and chose to a ride or find other modes of transportation and chose to walk home.walk home.Fall 2015 25

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Liability IssuesLiability Issues

Premises LiabilityPremises Liability

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Premises LiabilityPremises Liability• http://www.legis.la.gov/Legis/Law.aspx?d=109378• LSA-R.S. 9:2800 limits the liability of a public entity for LSA-R.S. 9:2800 limits the liability of a public entity for

damages caused by the condition of things within its damages caused by the condition of things within its care and custody.care and custody.

• A public entity includes:A public entity includes:– the state and any of its branches, departments, the state and any of its branches, departments,

offices, agencies, boards, commissions, offices, agencies, boards, commissions, instrumentalities, officers, officials and employees; instrumentalities, officers, officials and employees; andand

– the political subdivisions and their departments, the political subdivisions and their departments, offices, agencies, boards, commissions, offices, agencies, boards, commissions, instrumentalities, officers, officials and employees.instrumentalities, officers, officials and employees.

• A public school board is a political subdivision of the A public school board is a political subdivision of the state.state.

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Premises DefectsPremises Defects

• RS 9 §2800.  Limitation of liability for public bodies RS 9 §2800.  Limitation of liability for public bodies • A.  A public entity is responsible under Civil Code Article A.  A public entity is responsible under Civil Code Article

2317 for damages caused by the condition of buildings 2317 for damages caused by the condition of buildings within its care and custodywithin its care and custody

• Under Louisiana Civil Code article 2317, a public entity is Under Louisiana Civil Code article 2317, a public entity is responsible for damages caused by the condition of responsible for damages caused by the condition of buildings within its care and custody.buildings within its care and custody.

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Premises DefectsPremises Defects

• However no one will have a cause of action against a However no one will have a cause of action against a public entity for damages caused by the condition of public entity for damages caused by the condition of things within its custody and control based solely on things within its custody and control based solely on liability imposed under Louisiana Civil Code article 2317 liability imposed under Louisiana Civil Code article 2317 unless:unless:– the public entity had actual or constructive notice of the public entity had actual or constructive notice of

the particular vice or defect that caused the damage the particular vice or defect that caused the damage before the damage occurred; andbefore the damage occurred; and

– the public entity has had a reasonable opportunity to the public entity has had a reasonable opportunity to remedy the defect and failed to do so.remedy the defect and failed to do so.

• Ralph JOHNSON, In His Own Behalf and Behalf of His Minor Ralph JOHNSON, In His Own Behalf and Behalf of His Minor Daughter, Brenda Johnson v. ORLEANS PARISH SCHOOL Daughter, Brenda Johnson v. ORLEANS PARISH SCHOOL BOARDBOARD

• 261 So. 2d 699; 1972 La. App. LEXIS 5744 261 So. 2d 699; 1972 La. App. LEXIS 5744

• Court of Appeal of Louisiana, Fourth CircuitCourt of Appeal of Louisiana, Fourth Circuit

• Student was cut when she hit a broken window which had been Student was cut when she hit a broken window which had been taped in place some months before. School was found liable for the taped in place some months before. School was found liable for the injury. The fact that the temporary fix was in a place frequented by injury. The fact that the temporary fix was in a place frequented by students, and the permanent fix was not done for a matter of students, and the permanent fix was not done for a matter of months seemed to be the central issue to the court when liability months seemed to be the central issue to the court when liability was declared!!!was declared!!!

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Premises LiabilityPremises Liability

• Constructive notice means the existence Constructive notice means the existence of facts that infer actual knowledge.of facts that infer actual knowledge.

• A public entity’s violation of its own rules A public entity’s violation of its own rules and regulations is not negligence and regulations is not negligence per seper se..