Tort Liability & Risk Management

DR. ERNIE WALKERDR. 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 System—Simply 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 everyone’s 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. Existence of a Duty

2. Breach of a Duty

3. Cause-In-Fact Causation

4. Proximate Causation

5. 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. Contributory Negligence

2. Comparative Negligence

3. Assumption of Risk

4. Sovereign Immunity

5. 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 party’s 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 Assumption—Cases 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 can’t sue the United States for Negligence, You can’t 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.

• Don’t count on this as a defense -- Almost all have loop holes.

Intentional Torts

• Intentional Torts in Education:1. Battery

2. Assault

3. False Imprisonment

4. 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 plaintiff’s peace of mind.

Managing the Risk

1. Insurance

2. Behavior Regulation or Modification

3. Facility Inspection and Maintenance

Insurance

• Liability Insurance—All teacher should have some type of liability insurance. This may be acquired through Professional Organizations, as an add-on to your homeowner’s 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 school’s crisis management plan.

Student-on-Student Violence

• Are schools liable for student-on-student violence?

• Buffy’s and Heathers Fight …

• Are the 5 elements of negligence evident?