PE and the Law

Lawsuits Today

Some say society has lost sight of responsibility, everyone is looking for someone else to blame Positive Outcome: more attention to safe

practices and focus on how we treat people High standard of care

In loco parentis = ? in place of the parent(s)

Law 101

Types of cases: Civil case (tort case) - A tort is a civil action brought by one

party against another to redress some wrong committed by the party being sued (the defendant) against the party suing (the plaintiff). Burden of proof is not as high, often monetary compensation Torts go through the state courts

Criminal case - A crime is punishable by loss of liberty or life and is brought by the government against a defendant for violation of that government's laws. Various levels of severity/degrees (drug, violent, white collar, etc)

Recall the OJ case?

Law 101 Civil Law – a tort (legal action) can be brought for

acts of omission (failure to act) or commission (acting improperly) Negligence – failure to act as a reasonably prudent

person would under the same circumstances Nonfeasance – failure to do what is required Misfeasance – doing something incorrectly Malfeasance – doing something illegal

The courts recognize the accidents happen. The job of the plaintiff however is to prove the PE teacher did not act appropriately.

Negligence

Definition - failure to act with the prudence that a reasonable person would exercise under the same circumstances From wordnet.princeton.edu Helion – expert witness

2 cases – padding during a gymnastics exercise and supervision during cheerleading practice

Defenses for Negligence

One of the elements missing No duty, no breach of duty, cause could not be

established, no injury, just accident Contributory Negligence Comparative Negligence Assumption of Risk Act of God Immunity

Contributory Negligence

Was the plaintiff at all at fault, or contributed to accident? The older the student, the easier to show

contributory negligence, should have appreciated the danger of situation

Comparative Negligence Court will divide responsibility among the

parties involved Assessment of negligence on either side EXAMPLE: If $100,00 and plaintiff is 40% at fault,

then will get $60,000

Assumption of Risk Inherent and Unfortunate VS Unacceptable “Persons have a duty to use reasonable care to

avoid injury to others and may be held liable if their careless conduct injures” Yet, what was the role of the injured and the nature

of sport?

Act of God If lightening strikes without any warning Beyond the control of anybody Unpredictable, uncontrollable acts of nature

Could the defense of an act of God be used for a coach who continued to practice in a thunderstorm?

Football recess story

Good Samaritan Laws Giving first aid (don’t do things not trained for) Different laws among states

Damages

Compensatory damages are compensation for actual losses (e.g., medical bills, lost wages, court costs) while punitive damages are monetary awards to punish the defendants (i.e., persons being sued) for wrongful actions and to deter such actions in the future

Most basic responsibility of teachers is to properly supervise students. That means number one, being there. Number two, attending to your students and not for example, creating a practice plan for your team

NEVER EVER leave your students unsupervised, you won’t have a leg to stand on.

Preventing Negligence – 1) Supervision

1) Supervision

Supervision is more than just being present Monitor and keep activities within the skill level of

individual students (differentiated instruction) Keep students from participating in unsafe activities Enforce class and safety rules Keep records and be aware of student health status

(particularly IEP’s) Provide spotting and other specific supervision in

activities of elevate risk such as gymnastics and wrestling

1) SupervisionMore suggestions More dangerous an activity, the closer specific supervision

should be Very close supervision is needed when athletes are

performing a skill for the first time Advise against, especially for male teachers, being alone

with a student (office, equipment room, etc). In such instances, it is your word against yours. Either way you will lose, if not legally, personally. At the minimum, leave the door open

Duty to teach appropriate techniques, properly, and include safety rules. Always remember the mantra of “reasonable and prudent”

Failure to Instruct - relates to: Skills and Techniques Methodology

Planning, lessons, rules, facilities, equipment Duty to Warn (if applicable)

Knowledge of risks and benefits of activity

Preventing Negligence – 2) Instruction

Understanding of Safety Concerns

2) Instruction Additional Suggestions Progression of skill development Correct the incorrect

Don’t ignore, rotate giving feedback Risk of activity should match the skill level and training

of instructor Don’t get in over your head

Use proper and safe equipment including safety devices (guards, goggles etc) Newtown square

Sufficient space Pairing of individuals or groups without regard to (age,

height, weight, skill, maturity, disability) Wrestling

Match/Mismatch: A similar case was heard by a federal district court in Pennsylvania. In Cohen v. School District (1992), a special education student with learning disabilities, behavior problems, and known violent tendencies was mainstreamed without adequate supervision. Without provocation, the student attacked and injured a peer in his classroom. The parents of the injured student sued the school maintaining that the injured student’s rights had been violated. The court held that placing a student with behavior problems in the general education setting is not unconstitutional per se. That is, it is not a violation of law to place a potentially violent student in a general education classroom. The court stated such a placement, however, may result in school officials being held liable if the officials knew that a student with disabilities was violent, and they placed the student in the general education classroom without adequate supervision.

2) Instruction Additional Suggestions

Preventing Negligence3) Equipment & Facilities

Plan for periodic inspections and keep the records Adventure program (facilities and faculty training)

Report deficiencies (broken lock, warped floor, etc) Traceable manner such as email

Advise students of dangers (wet grass, ladder) Lock facilities when not in use

If a student gets into an empty gym and injures themselves, you’re at fault

3) Equipment & Facilities

“Attractive nuisance” – dangerous situation that attracts the attention of youth Applicable to under 14 years old Why most playgrounds have a fence around

them, why equipment is locked up… Facilities Checklist

Tom Bowler

Materials that may be subpoenaed

Lesson plans Attendance roster (Jim Rose) Notes Emails

Q&A

Preparation for an injury: Create a risk management plan

Only addition would be the addition of a communication device such as a walkie-talkie or a cell phone (battery)

Take med kit out to field? Sample plan

If an Injury Occurs

Complete an injury report - example REMEMBER, THIS DOCUMENT CAN EASILY BE

USED IN COURT!!!!!! Do immediately before the details become fuzzy If not sure whether you need to complete one, ask or do

it to be safe

Sample Injuries from PE

Act as “reasonable & prudent” professional Lack of supervision (Ithaca wall partition) Unanticipated performances (diss long jump) Equipment/facilities (pamper pole trapeze) Bee sting (boy’s club) Age appropriate activities (3rd grade BB) Trumbull (crash mat under cargo net) Chenango Forks (arrhythmia while swimming) SSW J. Rose (attendance) – keep records Other cases you’ve heard of?

Recent Cases

1, 2, 3, 4, 5, 6, 7, 8

Experiences from Student Teaching Cafeteria tables Covers for VB standards (here

too) Wall as boundary Equipment just off the playing

surface What is just outside a football or

soccer field boundary?

Temple U - golf

Liability Insurance

May be included through the school district, the teacher’s union, or a national organization such as the NEA or AFT Often a collaboration between the district’s

teacher’s union and the national organization Private insurance:

AAHPERD http://www.aaeteachers.org/insurance.shtml Examples: 1, 2, 3

Liability Insurance

Non-public school teachers (catholic schools, etc) often do NOT have employer or union provided liability insurance.

Administrators – OFTEN carry additional insurance (more often cited in lawsuits)

As a student teacher, you are insured by the PASSHE system.

Using Waivers

Add a waiver at the end of the written statement Similar to “Informed Consent” or “Assumption of

Risk” KIN 101 – Waiver and Medical History

Signature indicates knowledge, understanding, and appreciation of risks Willingness to waive legal rights to hold you

legally responsible in event of injury

Why should you NOT rely on a waiver for legal protection?

A minor’s rights cannot be waived. Until a minor reaches legal age, s/he is not mature

enough to fully understand terms Why use waivers then?

Valid agreement, you now have an assumption of risk Yet a signed waiver has been contested in court Acting appropriately in the first place and accepting

responsibility for warning athletes and parents about risks has more protection than trying to claim innocence later