chapter 11

1. Chapter 11 Tort Liability

3. The concept of tort: An unreasonable interference with the interests of others that causes injury. An action in tort compensates private individuals for harm caused them by unreasonable conduct of others.

4. Crime v. tort Torts and crimes differ and come from different bodies of law. A tort case is initiated by an individual to obtain compensation for an injury suffered, while a criminal case is initiated by the state to protect the public from unlawful acts.

5. Three categories of torts 1. Intentional interference 2. Strict liability 3. Negligence

6. Intentional tort A person need not have malevolent intentions to commit a tort. Any act, even a practical joke, that invades the rights of others is an intentional tort.

7. Assault and battery Assault differs from battery in that assault is mental, and battery physical. Therefore, terroristic threatening is considered assault and a person could pursue a tort case if he or she is so terrorized.

8. Burden of proof The burden of proof for assault and battery is on the plaintiff. If it can be proven that a person baited another into either act, the plaintiff can lose a tort claim. A school district can be found liable for allowing one student to batter another.

9. Discipline and battery The in loco parentis doctrine permits school officials to physically discipline students (if state law allows). Several conditions are considered to distinguish allowable physical punishment from illegal battery.

10. Conditions of discipline The choice of weapon Part of person to which it is applied Manner and extent of punishment Nature and gravity of offense Age of pupil Temper and deportment of teacher History of pupil�s previous behavior

11. Peace of mind It is difficult to prove mental or emotional anguish in court. Such cases are easier to prove if there is corresponding physical harm.

12. Spears v. Jefferson Parish In this case, a PE teacher instigated two kindergarten students to participate a prank on a third student to make the child believe his classmates had been killed by the teacher for misbehaving. The district was found liable for tort damages for emotional harm.

13. Strict liability This is also referred to as �liability without fault� (i.e., you broke it, you bought it). The reasonable person standard is used to determine whether an activity is so dangerous or hazardous that by virtue of its very nature it poses an inordinate risk to others.

14. Strict liability in schools It is rare for plaintiffs to prevail in strict liability cases against school districts. Areas of risk are laboratory experiments, shop classes, and field trips. As long as the court finds that reasonable precaution exists, the district isn�t likely to be found liable.

15. Fallon v. Indiana In this case, a sixth grade student suffered a spinal injury on a trampoline. The student had been adequately spotted and supervised, but the parents sued the district saying that the trampoline was inherently dangerous, thus subject to the strict liability standard of tort.

16. Fallon The courts found for the school district, saying that the trampoline was not subject to the standard. However, a number of schools and districts across the nation still eliminated their use of trampolines.

17. Negligence Negligent acts are neither intentional nor expected. The courts look to the reasonable standard in cases involving negligence. They ask whether a reasonable person might have prevented a harmful act from occurring.

18. Standard of conduct �It is fundamental that the standard of conduct which is the basis of the law of negligence is determined by balancing the risk, in the light of the social value of the interest threatened, and the probability and extent of the harm, against the value of the interest which the actor is seeking to protect, and the expedience of the course pursued.� p.556

19. The reasonable person The model for the reasonable person varies, but generally includes four conditions: 1. physical state of defendant 2. normal intelligence 3. normal perception and memory 4. such superior skill and knowledge as the actor hold herself out to the public as having.

20. Judicial interpretation In applying the reasonable person standard, the courts are more likely to take into account the physical characteristics of the actor than the mental characteristics. Mentally retarded and criminally insane people have been found guilty of tort liability for negligence.

21. Elements of negligence Duty Standard of care Proximate or legal cause Injury or actual loss

22. Duty No duty exists when a defendant could not reasonably predict the risk involved. A school district generally doesn�t have a duty to protect a student who has left the school without permission. An exception could exist if negligent supervision allowed the student to leave the grounds.

23. Standard of care This refers to what level of protection is expected. The standard is higher for the very old and the very young. It also varies by context; location, setting, situation. Children under age seven are incapable of being negligent; from seven to fourteen, their capacity is limited.

24. Proximate cause This refers to the connection between an act and an injury. In other words, is there a causal relationship between a negligent act and an injury, or would the injury probably have happened anyway?

25. Proximate cause In order to establish proximate cause, the defendant must be found to have a duty to maintain a reasonable standard of conduct in relation to that duty.

26. Brown v. Tesack In this case, two thirteen year old boys found partially filled cans of flammable duplicating fluid in a school�s dumpster and used them to light fires. One of the boys was subsequently injured. The school district was found liable of neglect for breach of duty and reasonable care in disposing of the fluid.

27. Brownell v. L.A. Unified In this case, a student was gunned down outside of a Los Angeles high school in a gang shooting. The district was found not guilty of negligence because it was found that there was no way the incident could have been foreseen, thus prevented.

28. Johnson v. Millard In this case, a music teacher was found guilty of negligent supervision when a first grader was severely cut as a result of an overly rough game of London Bridge is Falling Down. The age of the children and the context of the course were key factors.

29. Defenses to Negligence Contributory negligence: Some responsibility on plaintiff�s part usually absolves plaintiff Comparative negligence: Shared responsibility Assumption of risk: Plaintiff relieves defendant of duty Immunity

30. Immunity State or local governments Public officials performing certain functions Charitable organizations granted immunity Infants (some) Insane people (some)

31. Walmuth v. Rapides Parish In this case, a school district was found not liable for a student injured in a locker room fight because the PE teacher was found to have exercised adequate conduct for his duty, even though he wasn�t present in the room during the fight.

32. Stevens v. Chesteen In this case, a student was injured on the sidelines of a PE class. The teacher was temporarily off the field in a storage shed, thus not present at the time the injury occurred. The courts found that the teacher had not neglected his duty.

33. Hutchison v. Toews In this case, a fifteen year old student who was injured using an explosive he built using materials from school was found to have engaged in contributory neglect because he knew of the danger, but still broke the rules.

34. Hammond v. Carroll In this case, a female football player who was injured claimed that the school district was liable because it failed to warn her of the inherent risks of playing. The courts found that she was old enough determine and able to assume the risk in choosing to play.

35. Wagenblast v. Odessa This case found that school districts cannot exculpate themselves from liability for negligence by requiring parents to sign a release. See the six conditions outlined in the case.

36. Educational malpractice The courts have generally found that educational malpractice is not actionable as a tort. This is because it is very difficult to prove. If it could be shown that a teacher or group of teachers intentionally denied a student an opportunity to learn, it might be possible.

37. Chapter 13 Governmental liability

38. Sovereign immunity Emanating from English common law, governmental agencies have an inherent right to protect themselves from tort liability. Prior to 1959, public school districts were virtually immune from tort responsibility.

39. Moliter v. Kaneland In this case, the Illinois Supreme Court found that school districts were not immune from responsibility for student safety on school busses. The case was instrumental in the abrogation of sovereign immunity for school districts.

40. Legislative Authority The courts, in Richardson v. Rankin, gave the legislature the right to determine whether or not it wants to give governmental agencies immunity from tort liability.

41. Immunity protection If legislatures protect sovereign immunity, teachers and school districts may be immune from liability in tort actions (See Lentz v. Morris and Mosely v. Portland).

42. Ette ex rel. Ette v. Linn-Mar In this case, an Iowa court ruled that a teacher�s decision to send a 15 year old student home to Iowa from Texas by bus was not protected by discretionary immunity, even though the student was clearly in violation of school rules.

43. Insurance and liability In some states, the law states that if a school district purchases liability insurance, immunity is waived. In Dugger v. Sprouse, a Georgia case, a student was injured while participating in a school-related activity. Because the district had purchased liability insurance, the courts found immunity to be waived.

44. Proprietary functions These are functions which are elective and for which a district is not normally required by law, such as athletic events or fund raising functions. Generally, school districts are not liable for tort damages at proprietary functions.

45. Invitees and licensees Invitees are just that; people invited to events on school property. Licensees come onto the property legally, but uninvited. The standard of care is higher for invitees than for licensees.

46. Tanari v. District 502 In this case, a school bus driver was injured while attending a football game to which she had transported students. Because she held a free pass to the game, the courts found she was an invitee and thus could collect damages from the school district.

47. Nuisances A nuisance is defined as �the existence or creation of a dangerous, unsafe, or offensive condition which is likely to cause injury, harm, or inconvenience to others.�

48. Civil Rights Act 1871 Section 1983 of this law permits people to collect damages from state and local agencies and officials who violate their constitutional rights.

49. Wood v. Strickland In this Supreme Court case, the court found that individual school board members who expelled two high school girls in violation of their Fourteenth Amendment rights could be liable for damages under Section 1983.

50. Eleventh Amendment immunity The Eleventh Amendment protects a state agency from being sued by a person in another state. In terms of this type of immunity, the courts have generally found that school districts function more as municipalities than arms of the state and therefore, aren�t immune.