Ask Matt - October 2010 - School Liability

1. Ask Matt - October 2010 - School Liability Matt Carver, J.D., Director of Legal Services tel - 515.267.1115 fax - 515.267.1066

2. School Liability • As stated by the Iowa Supreme Court: “The law charges school districts with the care and control of children and requires the school district to exercise the same standard of care toward the children that a parent of ordinary prudence would observe in comparable circumstances.” Ette. v. Linn-Mar, 656 N.W.2d 62, 69 (Iowa 2002). • School districts have a duty to supervise and adequately control students. This duty may include the responsibility to delegate supervisory responsibility to others. Bellman v. Cedar Falls.

3. School Liability • However, the law does not impose liability for negligence unless the breach of a duty of care is also the proximate cause of the injury. Hartig v. Francois, 562 N.W.2d 427, 429 (Iowa 1997). • Proximate cause has two components: • (1) the defendant's conduct must have in fact caused the damages; and • (2) the policy of the law must require the defendant to be legally responsible for them. Hasselman v. Hasselman, 596 N.W.2d 541, 545 (Iowa 1999). With respect to the first component, a plaintiff must at a minimum prove that the damages would not have occurred but for the defendant's negligence. Id.

4. School Liability - Actions of Third Parties • Brokaw v. Winfield-Mt. Union CSD (hereinafter “WMU”) case. Brokaw v. WMU involved a family suing a player and school district for a player’s actions during a basketball game, and the resulting injury to the plaintiff, Brokaw. • During a January 2004 basketball game, Brokaw, a guard for Iowa Mennonite School, was struck in the head by the elbow of Andrew McSorley (“McSorley”), a WMU player, and fell to the floor. • The court found that the Brokaws failed to prove that WMU was negligent in supervising McSorley. • The Iowa Supreme Court found that substantial evidence supported the trial court’s finding that WMU could not reasonably foresee that McSorley would intentionally attack another player.

5. School Liability - Actions of Third Parties • So what are some things that we learned, or were reaffirmed by the Iowa Supreme Court? • 1) Despite the ruling in favor of WMU, coaches have a duty of reasonable care to control their players. • 2) The Iowa Supreme Court reaffirmed that “the conduct of a defendant [school district] can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third party.” • Liability may result where the actions of the defendant [school district] “Increase the likelihood that the plaintiff will be injured on account of the misconduct of a third party” (such as a student or other non-employee).

6. School Liability - Actions of Third Parties • 3) Legal guidance provides the following examples of situations where the defendant [school district] has created or increased the likelihood of injury by a third person: • a) The [school district’s] conduct may make available to the third party the instrument eventually used by the third party in inflicting harm. [Matt, a fifth grade student, has been in a couple of fights over the past year. He had a verbal altercation with Tanner during lunch. The lunch monitor instructs both students to sit down at different tables. On his way to the table Matt grabs a baseball bat out of a barrel that the P.E. teacher left in the gym, which also serves as the lunchroom, and breaks Tanner’s arm with the bat.]

7. School Liability - Actions of Third Parties • 3) Legal guidance provides the following examples of situations where the defendant [school district] has created or increased the likelihood of injury by a third person: • . . . • b) [School district’s] conduct may bring the plaintiff to a location where the plaintiff is exposed to third-party misconduct. [You are a high school principal. You are aware that Jessica, a junior at your school, has been exchanging threatening text messages with Katie, a senior at a neighboring high school. Nonetheless, a couple of days after reviewing some of these text messages, and without taking further action, you allow Jessica to travel to the neighboring school for a joint student council meeting. As Jessica walks down the hallway at the neighboring school, Katie steps out from behind a locker door and cold cocks Jessica.]

8. School Liability - Actions of Third Parties • 3) Legal guidance provides the following examples of situations where the defendant [school district] has created or increased the likelihood of injury by a third person: • . . . • c) [School district’s] conduct may bring the third party to a location that enables the third party to inflict harm on the plaintiff. [Same as B, but imagine Jessica cold cocking Katie when Jessica arrives at the neighboring school.]

9. School Liability - Actions of Third Parties • 3) Legal guidance provides the following examples of situations where the defendant [school district] has created or increased the likelihood of injury by a third person: • . . . • d) [School district’s] business operations may create a physical environment where instances of misconduct are likely to take place. [One of the hallways at your school is extremely narrow, and you have had numerous fights over the last year which allegedly started over the fact that students are bumping into each other as they pass between classes. Despite the overcrowded hallway leading to so many altercations, your administration takes no action to ensure that additional staff are supervising the hallway, nor is action taken to adjust the flow of students in the building. Sure enough, a couple of girls bump shoulders in the hallway, leading to a fight. Before staff arrives, one of the girls has already suffered a broken eye socket.]

10. School Liability - Actions of Third Parties • 3) Legal guidance provides the following examples of situations where the defendant [school district] has created or increased the likelihood of injury by a third person: • . . . • e) [School district’s] conduct may inadvertently give the third party a motive to act improperly. [For instance, a baseball coach giving a pitcher a sign to throw a pitch at an opposing batter, because the other team’s pitcher had thrown a ball at a player.]

11. School Liability - Foreseeability • Under the Restatement (Third), as adopted by the Iowa Supreme Court, the risk is sufficiently foreseeable to provide a basis for liability when: • “the actor [has] sufficient knowledge of the immediate circumstances or the general character of the third party to foresee that party's misconduct.” Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010).

12. School Liability - Foreseeability • So, how does foreseeability apply in the case of a coach? As the Iowa Supreme Court wrote: • “During the course of a game, a coach must make the determination whether to allow a player to participate or bench that player. If the coach’s knowledge of the immediate circumstances or the general character of the player should alert the coach that misconduct is foreseeable, then reasonable care would require the coach to make the decision to bench that player until the risk of harm has dissipated.” • As the Iowa Supreme Court noted, “the law itself must take care to avoid requiring excessive precautions of actors relating to harms that are immediately due to the improper conduct of third parties, even when that improper conduct can be regarded as somewhat foreseeable.”

13. School Liability - Staff to Student Harassment • In 1998, the U.S. Supreme Court first gave students a private right of action (as opposed to agency regulation only) for monetary damages for sexual harassment by a school employee against the school if the plaintiff proved the following: • a. That the school had actual notice of the misconduct; and • b. That the school was deliberately indifferent to the misconduct. • Another way of look at this is that the plaintiff must show that the school made a deliberate decision not to remedy the misconduct. However, U.S. Supreme Court affirmed lower court’s entry of summary judgment on behalf of school district, because district did not have actual notice of sexual relationship between high school student and teacher. [Gebser v. Lago Vista SchoolDistrict, 524 U.S. 274, 118 S.Ct 1989 (1998).]

14. School Liability - Volunteer to Student Harassment • A student alleged sexual harassment by a school volunteer (same analysis as if the alleged perpetrator were an employee of the district). There were a few previous complaints about this volunteer – a 70+ year old man – but none had been substantiated upon investigation. That is, there was no reason for the school district to remove him as a volunteer when its investigation was done in a reasonably thorough manner and did not disclose any problems. Therefore, the district’s motion for summary judgment was granted. [Gordon ex rel. Gordon v. Ottumwa Community School District, 115 F.Supp.2d 1077 (S.D. Iowa 2000).] • [Learning Points – School was not found liability for volunteers behavior because school: • 1. Conducted its investigation in a “reasonably thorough manner.” • 2. The earlier investigation did not disclose any problems. • 3. School district removed volunteer from position immediately upon learning of allegation that formed basis of lawsuit.]

15. School Liability - Negligent Hiring • Mothers, on behalf of three female middle-school students, brought action against community school district for vicarious liability and for the negligent hiring, retention, and supervision of teacher who allegedly engaged in improper sexual conduct with the students. The Iowa Supreme Court held that the district's hiring, retention, and supervision of middle-school teacher was not an exercise of judgment of the kind the discretionary function exception from governmental tort liability was designed to shield (a.k.a. – “discretionary function immunity”). The court stated that the choice to hire, retain, and supervise a particular teacher does not involve policy decisions entitled to protection from judicial review. [Doe v. Cedar Rapids Community School District, 652 N.W.2d (2002).]

16. School Liability - Peer to Peer Harassment • 1. The plaintiff must show harassment that isso severe, pervasive, and objectively offensive, and that so undermines and detracts from the victim’s educational experience that the victim is effectively denied equal access to the school’s resources and opportunities. • 2. The district will be heldliable only if it responds to KNOWN peer harassment in a “clearly unreasonable” manner. If the school responds in this fashion, it will be found to be “deliberately indifferent.”

17. School Liability - Ways to stay out of trouble • 1) Do not violate a student’s or staff member’s Constitutional Rights. • Give due process • Honor free speech rights • Do not invade privacy (e.g., unlawful searches, especially strip searches) • Ensure staff are not discriminating based on race, religion, or other protected classifications • 2) If students are traveling to or from practices or official events in personal vehicles, make sure parents approve of this. If a student is going to travel to golf practice, for instance, with another student, ensure you have written permission on file. Otherwise, the district has a responsibility to provide transportation to the activity and back to the school.

18. School Liability - Ways to stay out of trouble • 3) Have someone from the insurance company do a safety audit at your school. • 4) Err on the side of informing parents when issues come up relating to students. For example, if a student provides information that another student is drinking or doing drugs, I would bring this to the attention of parents. Better safe than sorry. • 5) Ensure criminal background checks are done on newly hired teachers and administrators, unless they just were licensed. Perform criminal background checks on other employees who are in sensitive positions. For example, individuals who will handle district money, serve as bus drivers, or work one-on-one with kids. At the very least, check the sex offender registry for all volunteers and employees.

19. School Liability - Ways to stay out of trouble • 6) Ensure that staff are not texting or otherwise not paying attention when they are in supervisory position. For example, consider the aide who is texting while she is supposed to be supervising kids on the playground. • 7) Restrict staff one-on-one contact with students outside of appropriate school settings, to include restrictions relating to texting outside of school and communicating on social networking sites. • 8) Act on your gut instinct when you feel that there may be an inappropriate relationship between a staff member and a student, and encourage staff to contact you when they are worried about the actions of other staff members.

20. School Liability - Ways to stay out of trouble • 9) Empower staff to take action whenever they see an unsafe act, even if it may be occurring in someone else’s area. • 10) Act on student and staff complaints about harassment or threats. • 11) Act immediately when you are put on notice about potential safety issues or you notice a safety issue. For example, if someone shares that there is a sharp object sticking out of the jungle gym, ensure it is addressed immediately, and the safety issue is resolved before children play on it again. • 12) Ensure that staff read, follow, and enforce district policies and building rules.

21. School Liability - Ways to stay out of trouble • 13) Ensure that staff does not discuss confidential matters relating to students or other staff members. • 14) Make sure the school district has enough insurance coverage. • 15) Ensure that staff has physical confinement and restraint training, and that regulations are followed, to include the sending of notifications to parents and using appropriate restraint techniques. • 16) Ensure bus drivers are fit to drive, and that they have procedures to double-check the bus for passengers at the last stop.

22. School Liability - Immunity • Iowa Code §280.27 REPORTING VIOLENCE — IMMUNITY.An employee of a school district, an accredited nonpublic school, or an area education agency who participates in good faith and acts reasonably in the making of a report to, or investigation by, an appropriate person or agency regarding violence, threats of violence, or other inappropriate activity against a school employee or student in a school building, on school grounds, or at a school-sponsored function shall be immune from civil or criminal liability relating to such action, as well as for participating in any administrative or judicial proceeding resulting from or relating to the report or investigation.

23. School Liability - Immunity • Iowa Code §613.21 IMMUNITY FROM CIVIL SUIT. • An employee of an accredited public school district, accredited nonpublic school, or area education agency shall be immune from civil suit for reasonable acts undertaken in good faith relating to participation in the making of a report and any resulting investigation or administrative or judicial proceedings regarding violence, threats of violence, or other inappropriate activity against a school employee or student, pursuant to the provisions of section 280.27.

24. School Liability - Immunity • Iowa Code §280.28 (5) Immunity. A school employee, volunteer, or student, or a student's parent or guardian who promptly, reasonably, and in good faith reports an incident of harassment or bullying, in compliance with the procedures in the policy adopted pursuant to this section, to the appropriate school official designated by the school district or accredited nonpublic school, shall be immune from civil or criminal liability relating to such report and to participation in any administrative or judicial proceeding resulting from or relating to the report.

25. School Liability - Immunity • Iowa Code §91B.2 INFORMATION PROVIDED BY EMPLOYERS ABOUT CURRENT OR FORMER EMPLOYEES -- IMMUNITY. • 1. An employer or an employer's representative who, upon request by or authorization of a current or former employee or upon request made by a person who in good faith is believed to be a representative of a prospective employer of a current or former employee, provides work-related information about a current or former employee, is immune from civil liability unless the employer or the employer's representative acted unreasonably in providing the work-related information.

26. School Liability - Immunity • Iowa Code §91B.2 INFORMATION PROVIDED BY EMPLOYERS ABOUT CURRENT OR FORMER EMPLOYEES -- IMMUNITY. • . . . • 2. For purposes of this section, an employer acts unreasonably if any of the following are present: • a. The work-related information violates a civil right of the current or former employee. • b. The work-related information knowingly is provided to a person who has no legitimate and common interest in receiving the work-related information. • c.The work-related information is not relevant to the inquiry being made, is provided with malice, or is provided with no good faith belief that it is true. • 3. For purposes of this section, "employer" and "employee" are defined as provided in section 91A.2.

27. School Liability - Immunity • In Iowa, every municipality is subject to liability for its torts and those of its officers and employees, acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function.   Iowa Code § 670.2. By definition, “municipality” includes a school district.   Id. § 670.1. Municipalities are, however, statutorily immune from liability for “[a]ny claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty whether or not the discretion is abused.”   Id. § 670.4(3).   Commonly known as the “discretionary function exception,” this immunity is intended to prevent judicial “second guessing” of administrative decisions grounded in social, economic, and political policy through tort litigation, thereby protecting municipalities from liability that would seriously handicap efficient government operations.  Goodman v. City of LeClaire, 587 N.W.2d 232, 237 (Iowa 1998) (quoting United States v. Varig Airlines, 467 U.S. 797, 813-14, 104 S.Ct. 2755, 2764-65, 81 L.Ed.2d 660, 674-75 (1984)).

28. School Liability - Immunity • The “discretionary function exception” was not designed to shield school districts from an alleged breach of its duty of care and supervision toward students in its charge. Ette v. Linn-Mar CSD (referencing Iowa Code §670.4(3)

29. School Liability - Immunity • Discretionary function exception - Two-part test we recognized in Goodman:   • (1)Did the challenged conduct involve an element of choice or discretion? • (2) If discretionary judgment was involved, was the decision or course of action driven by public policy concerns grounded on social, economic or political considerations?   City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 19 (Iowa 2000).   • A negative answer to either question will defeat the application of the discretionary function exception.   City of Cedar Falls, 617 N.W.2d at 19.   And, because liability is the rule and immunity the exception, the burden rests on the governing body to prove entitlement to the statute's protection.  Doe, 652 N.W.2d at 446.

30. School Liability - Immunity • Examples of when discretionary function immunity applies: • Downing v. Brown, 935 S.W.2d 112, 114 (Tex.1996) (maintaining classroom discipline a discretionary function); • Boyett v. Tomberlin, 678 So.2d 124, 127 (Ala.Civ.App.1996) (teacher's decision to accept or reject student's reason for leaving classroom “the epitome of a discretionary function”); • Payne v. Twiggs County Sch. Dist., 232 Ga.App. 175, 501 S.E.2d 550, 552 (1998) (need to exercise, or refrain from, discipline vested in school officials' discretion). • In City of Cedar Falls, a case in which the school district claimed the discretionary function exception shielded it from liability for the death of a kindergartner on a field trip, we held that “decisions made by a teacher in supervising her class,” even when involving matters of judgment, are not of the kind protected by the exception.  617 N.W.2d at 19.

31. School Liability - Questions ???????