Week+5+-+Tort+Liability

Another law resource: [] Student Teaching Handbook: []
 * __**TOPICS**__ || __**REFERENCES**__ || __**NOTES**__ ||
 * **// I. General Principles of State Tort Law //** || Find a Case Website: [|www.findacase.com]

[|**Benton v. School Board of Broward County, 386 So. 2d 831, 834 (Fla. App. 1980).doc**]
 * One student trying to get into the bathroom, one trying to get out; part of a finger needed to be amputated after a hand got slammed in the door
 * The teacher was not negligent b/c she shouldn't need to follow all students to the bathroom || * A tort is, "a civil wrong arising out of a breach of duty that is imposed by law" (Law in the Schools, Valente and Valente)
 * Torts are not crimes and only need to prove fault based on a preponderance of evidence. (this is significantly lower than the burden of proof for a crime - "beyond a reasonable doubt")
 * Tort law is grounded in the concept of fault, however a school district is not liable for every injury that may occur to students, only those injuries that are caused intentionally or by negligence of emloyees and officials. (Law in the Schools, Valente and Valente)
 * Questions to be resolved in tort claims include:
 * Did the sued party have a duty (standard) of care to prevent the injury suffered?
 * If so was the duty breached?
 * If a breach did occur, was the breach the direct cause of the injury?
 * Is the sued party legally protected by privilege or immunity?
 * If the sued party is liable is their a monetary limit to the damages? (Law in the Schools, Valente and Valente) ||
 * ** A. Standard of Care Requirment ** || [|Barth v. Board of Educ., 490 N.E.2d 77 (Ill. 1986) (special duty to protect).doc] - Described a case of a boy with a concussion whose treatment was delayed due to the districts failure to procure or provide transport to the hospital across the street. Liability was divided equally between the city and the school (the school called 911 three times before an ambulance arrived, school attempted to claim that staff was not allowed to transport the student as this was equal to providing medical treatment.) || Standard of Care Requirement is: "the duty of care which a reasonable person of ordinary prudence would exercise for the safety of others in like circumstances"(Law in the Schools, Valente and Valente * Reasonable Person Standard - the risk must be reasonably **__foreseeable__** and **__preventable__**. to apply.
 * As a result there is no fixed measure to determine if this standard of care has been breached. It varies based on the situation and the parties involved.
 * In some instances, the courts have imposed a higher "special duties" to protect children. ||
 * ** B. The Causation Requirement ** || [|Hoyem v. Manhattan Beach City School Dist., 585 P.2d 851 (Cal. 1978).doc] - This case explored the liability of a school in a case that claimed inadequate supervision resulted in a student being injured when they left school grounds and were struck by a motorcycle. || The "but for" test: The claimant must prove that the defendants acts or omission was the proximate cause of an injury. These acts must be a material and substantial factor in producing the harm, "but for" which the harm would not have occurred. (Law in the Schools, Valente and Valente) In general particular case facts are often critical to finding whether school negligence is considered a proximate cause. (Law in the Schools, Valente and Valente) ||
 * ** C. General Defenses ** ||  || These are defenses that can prevent a victim from recovering damages even when negligence occurred.(Law in the Schools, Valente and Valente) ||
 * 1. Privileged Conduct || [|118.126 Privileged communications..doc] -This document contains the WI statute related to privileged communications with students in the case of drug or alcohol use on the part of the student.

[|Wisconsin Statute 885.205 Privileged communications.doc] This document contains the statute related to confidentiality of what is disclosed to a school psychologists or dean of student in the course of a counseling session or discipline inquiry. [|Wisconsin Statute 118.29 (2).doc] This statute discusses a school employees ability to administer medication. || Conduct that is "privileged" are actions that teachers and administrators are legally allowed to do as part of their position. Since these actions are deemed as legal they are not "tortious". (Law in the Schools, Valente and Valente) || [|THE CRIME/TORT DISTINCTION: LEGAL DOCTRINE AND NORMATIVE PERSPECTIVES] || The victim decides whether to bring a tort claim, and is free to do so. But tort law does // not // purport to provide remedies proportional to the injurer's wrong: normally, compensation is the remedy, whatever the nature of the tort or wrong. Wisconsin limit is $50,000 || Dobratz v. Thompson || Two types: Release of Waiver( release of a right or claim) and Exculpatory Agreement (covenant not to sue)
 * 2. Victim Fault ||
 * 3. Written Waivers of Tort Claims || "Contractual Umbrellas Provide Shelter from Tort Liability" //Wisconsin School News//, March 1984

Intention: designed to shield a party from the monetary consequences f being found liable to others.

Waiver must set forth the nature of the activity and the rights being waived--May provide some measure of protection to school districts.

Two factors considered when courts examine a waiver: 1. The waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived. 2. It must alert the signer to the significance of what is being signed. || Jackson v. Hankinson || Two-part test in regard to duty of care: 1. Does the supervisor know or had reason to know of any potentially dangerous act. 2. Did the supervisor have an opportunity to use reasonable measures to prevent the conduct, but failed to do so.
 * 4. School District Vicarious Liability || Hamed v. County of Milwaukee

Failure to to ensure the above results in the district being liable for all the agencies or organizations it uses.

School board policies and practices that demonstrate a good faith effort to protect students from harassment are certain to help protect a school district from liability. || (Valente and Valente p. 121) || Must serve a reasonable educational purpose; "reasonableness" will reflect a community's norms
 * **// II. Common Tort Situations //** ||  ||   ||
 * ** A. Corporal Punishment ** ||  ||   ||
 * 1. Constitutionality || 118.31 Corporal Punishment || In 1977, the Supreme Court ruled that corporal punishment in schools is permissible under the U.S. Constitution. While 27 states and the District of Columbia have passed laws prohibiting the practice, efforts to do the same in the remaining 23 states have failed to gain ground. ||
 * 2. When Corporal Punishment Is Not Tortious ||  || Corporal punishment is not a tort when authorized and administered in a //privileged// manner.
 * Must be reasonable as to purpose, method, and force
 * //In loco parentis// does not extend to the full realm of discipline that parents have
 * Rarely has corporal punishment been allowed for purely instructional purposes
 * a. Purpose of Punishment || Baker v. Owen, 395 F. Supp. 294 (M.D. N.C. 1975) || []

Considerations: (Valente and Valente p. 122) || Pain or minor bruising as the result of a punishment does not necessarily mean excessive force was used. Severe physical injuries are likely to be considered excessive and tortious. (Valente and Valente p. 122) || However, the reasoning of defense is lost when the behavior becomes vindictive and excessive. (Valente and Valente p. 122) || Res ipsa loguitur (the thing speaks for itself) infer neglect **Child Trespassers**- Attractive nuisances – Students may be attracted to construction sites. School are held to a much higher level of care. Often to the level of invitees.
 * Nature of student infraction
 * Student's past record
 * Age
 * Sex
 * Mental and physical conditions
 * Suitability of the instrument and force being used
 * b. Reasonableness of Force || Hogenson v. Williams, 542 S.W.2d 456 (Tex. 1976) || []
 * c. Defensive Use of Force ||  || The greater the threat of danger, the greater the justification for quick and forceful defensive action.
 * ** B. Premises Liability ** ||  ||   ||
 * 1. Standard of Care for Premises Safety || [[file:Standards For School Premises And Facilities.doc]] || **Invitees** (invited people have the right to expect the premises to be reasonably safe.)
 * Licensesse and trespassers** (lower duty of care due)

School Supervision Problem Areas ( A really good 2 page summation of tort and liability issues.) || Super 18 page detailed look at case laws in regard to supervision/Duty. || Whenever a reasonable person would anticipate the need for duty would arise. 1. Care not to create danger by one’s own negligent conduct 2. Care to avoid perils created by others ||
 * ** C. Supervision Liability ** ||  ||   ||
 * 1. When the Duty of Supervision Arises || [[file:Study guide_Chapter_14.pdf]]
 * 1. When the Duty of Supervision Arises || [[file:Study guide_Chapter_14.pdf]]
 * 2. General vs. Special/Direct Supervision || **Jennifer C. v. Los Angeles Unified School District**, (2nd District, December 8, 2008) 168 Cal. App. 4th 1320, 86 Cal.Rptr.3d 274, 2008 WL 5122998

Teachers cannot observe every movement of every child. Only general supervision, Not direct, nor special supervision is required where students engage in actives that are not normally dangerous. || Wisconsin State Statute 118.128-Information related to pupil harm to others (see below Stat0118.pdf for more information) || Failure to supervise studnets with known violent tendencies and to arn a substitute teacher about violent students are grounds for holding principals and teachers liable in tort (Valente & Valente, 2005, p. 125) Properly published safety rules and procedures may relieve school district and supervisors of liability for injuries caused by violations of these rules, unless student failure to follow rules was reasonably forseeable. (Valente & Valente, 2005, p. 125) || 118.08-School crossing zones 118.09 Safety zones 118.105-Control of traffic on school premises 118.11- School fences 101.06-safe place statutes
 * 3. Foreseeable Criminal Conduct || Hill v. Safford Unified school District
 * **__TOPICS__** || **__REFERENCES__** || ** __NOTES__ ** ||
 * 4. Circumstances Affecting Degree of Supervision ||  || Supervisory duties are determined by the nature, time and place of student activity (Valente & Valente, 2005, p. 125) ||
 * a. School Grounds/Safe Place || Wisconsin State Statutes:
 * a. School Grounds/Safe Place || Wisconsin State Statutes:

|| When school is not in session, supervision of school grouds immediately before or after classes may be required where students are known to congregate (Valente & Valente, 2005, p. 125) A stronger case for liability exists when school rules explicitly require such supervision.

||
 * b. Classrooms & Corridors || WASB policy 455.1-supervision of students

|| Classroom absence of the class teacher, during which time a student is injured is a common ground of tort claim. In these cases the court much decide whether the teacher's absent was reasonable based on duration, class makeup, and/or student assignments during absence.

Distractions within the classroom that result in student injury are not automatically considered neglect. ||
 * c. Athletics & Phys. Education ||  || [[file:School Liability mand PE.doc]]

[|Athletics and Physical Education.doc] || negligence brought or maintained against a school district upon a claim or cause of action unless the claimant complies with s. 893.80. This section does not apply to actions commenced under s. 19.37, 19.97 or 281.99. VTAE [technical college] districts are school districts under this section. Binder v. Madison, 72 Wis. 2d 613, 241 N.W.2d 613 (1976). || Explanation of who is to be transporting students to and from school, in what type of vechicle and distance from school. Schools have limited liability for what happens at bus stops and for student pedestrians. Bus drivers will be held neligent for driving too fast in a school zone, sudden stops and starts, turns at unsafe speeds, failing to use warning lights at crossing and discharging passengers at unsafe places. boarding and deboarding are not automatic negligence. [|Student Transportation.doc] || 118.295 Suicide intervention; civil liability exemption. Any school board, private school, county children with disabilities education board or cooperative educational service agency, and any officer, employee or volunteer thereof, who in good faith attempts to prevent suicide by a pupil is immune from civil liability for his or her acts or omissions in respect to the suicide or attempted suicide. The civil liability immunity provided in this section is in addition to and not in lieu of that provided under s. 895.48 (1).
 * d. Laboratory & Shop Facilities ||  || [|Laboratory and Shop Facilities.doc]
 * 118.26 Claim against school district. **No action may be
 * History: **1977 c. 285; 1979 c. 323 s. 33; 1995 a. 158; 1997 a. 27.
 * e. Student Transportation ||  || []
 * f. Off-Campus Activities ||  || Off-campus school sponsored activities are an extension of the campus itself and all supervision duties apply. Nonsponsored activities do not require supervision. Field trips will depend on the nature of the field trip. ||
 * g. First Aid ||  || Apply only when necessary, do not do more than trained to do, fill out accident reports when appropriate, use universal precautions, and seek medical help when appropriate. ||
 * h. Student Suicides & Homicides ||  || ** ====== ======

History: 1985 a. 29; 1987 a. 14; 1997 a. 164. ** || Made up of twin torts Defined as the issuance of a false statement about another person, which causes that person to suffer harm. || Indemnification statutes often applies and requires school districts to pay for litigation costs and tort judgments that are suffered for actions taken within the scope of job duties. ||
 * ** D. Defamation (Libel/Slander) ** ||  ||
 * Slander ** involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation.
 * Libel ** involves the making of defamatory statements in a fixed or medium, such as a magazine or newspaper.
 * ** E. Educational Malpractice ** ||  || Expresses 2 related tort claims:
 * 1) failure of school authorities to properly evaluate and place a student, with consequent injury to that student’s educational development
 * 2) failure to bring a properly placed student up to a satisfactory level of learning achievement ||
 * **// III. Limitations on Tort Recovery //** ||  ||   ||
 * ** A. Personal Immunity ** ||  || Personal tort immunity is intended to encourage public servants to perform their duties without fear of tort suits – must be exercising educational discretion
 * ** B. Notice & Time Limits & Dollar Caps ** ||  ||   ||
 * 1. Statutes of Limitations ||  || "States have short statutes of limitations for tort lawsuits against government agencies, usually one year from the date of the injury. Here also, courts may allow late filing in special circumstances where late filing is excusable." (Valente and Valente, 137) ||
 * 2. Dollar Recovery Limits || [|Turrentine v. Brookhaven] || "The statutes of many states set dollar limits for money recoveries for torts, saps that often differ for different types of tort injury. These state to state cap variations range from modest ceiling of several thousand dollars in one state to a ceiling of several hundred thousand dollars in another" (Valente and Valente, 137) ||
 * 3. Damages ||  || [|Damages]

a remedy in the form of monetary compensation to the harmed party. || **Remedy for wrongs. Section 9.** Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws. ||
 * 4. Remedy of Wrongs || Article I-Wisconsin State Constitution || Article I, §9