Risk Management: Creating a Safe Environment

1. Risk Management:Creating a Safe Environment

2. What is Risk Management? • Risk management is a coordinated, effective, pre-response and post-response to a school’s district’s liability exposures developed through planning, organizing, directing, and monitoring a district’s activities and assets • Risk management is the process of minimizing accidental loss by anticipating and preventing the occurrence of unplanned events • Ingredients for risk management: Authority, Accountability, Responsibility, and Training (AART)

3. Principles of in loco parentis Definite responsibility to the school for the welfare of each student it serves in the absence of the student’s parent or guardian

4. Components of Risk Management • Risk identification • Risk assessment • Risk Control

5. Risk identification Implementation of safety campaigns, safety instruction, warning signs, and maintenance carried by schools and etc. • Risk assessment Periodic check-ups on electrical wiring and appliances, plumbing and sewage systems, fire drills, conditions of physical structures staircases, grilled windows and laboratories

6. Risk control Safety procedures such as the use of log books for recording past accidents, list of emergency telephone numbers, fire extinguishers and first aid boxes

7. Why do we need risk management in schools? • It is not managerially possible for schools to completely eliminate risks nor fiscally prudent to insure potential risk • Schools cannot avoid accountability for its actions or inactions • A well-planned, active program of risk anticipation and prevention is more preferable (a pro-active approach)

8. What does it include? • Student and staff safety • Health Child abuse/abduction, drug testing, drug testing and student athletes, drug testing and employees, students/employees with Aids • Chemical safety • Environmental affairs • Property protection • Contingency planning • Security

9. Transportation • Third party liability • Contractual liability

10. Implications for Risk Management • Accidents, incidents, or transgressions are organizational managerial problems, not people problems. They are often dealt with ex post facto rather than through active program of risk anticipation and prevention • Insurance should be thought of only as financial protection for unexpected failure in risk management programs, not as the sole remedy for all accidental loss • Risk factors diminish with the expansion of the practice of prevention law:

11. The lower the knowledge of legal procedures and the practice of judgment and foreseeability is, the higher the incidence of liability, environmental, and personnel loss Effective risk management requires effective leadership

12. Due Process • There are two kinds of due process: Procedural due process Substantive due process • Procedural due process It entails fair warning and fair hearing Fair warning: A person must be aware of the rules to follow, or behavior that must be exhibited, and the potential penalties for violation

13. Fair hearing The individual must be given written statement of the charges and the nature of the evidence The individual must be informed of certain procedural rights Adequate time must be provided to prepare a defence There must be an opportunity for a formal hearing

14. Substantive due process • It is concerned with the basic legality of a legislative enactment • Guideline to ensure substantive due process: Legality Sufficient specificity Reason and sensibleness Adequate dissemination Appropriate penalities

15. Tort (Tortus in Latin) • Tort is an actionable wrong, exclusive of a breach of contract, that the law will recognize and set right. A tort is a legal wrong against the person, property, or reputation of another (Tort ialah satu perbuatan salah di mana mangsa mengalami kecederaan fizikal, reputasi atau pada hartanya) • Classification of tort: The direct invasion of some legal right of the individual (e.g. invasion of privacy) The infraction of some public duty by which special damage accrues to the individual (e,g, denial of constitutional right) The violation of some private obligation by which damage accrues to the individual (e.g. negligence) • Negligence is the primary basis of tort liability suits filed against school districts

16. Kecuaian sebagai satu “tort” “Kecuaian bukan setakat tidak mengambil peduli atau perlakuan chai … tetapi menampilkan konsep yang kompleks mengenai kewajipan, kemungkinan dan kerugian yang dialami oleh seseorang” (Hakim Lord Wright, 1934)

17. Reasonable/Prudent Person (Orang yang munasabah/biasa serta waras) • Negligence is doing something that a reasonably prudent person would not have done, or failing to do something that a reasonably prudent person would have done when confronted by like or similar circumstances • Reasonable/prudent person • The defendant is not identified with an ordinary individual who might occasionally do unreasonable things, instead, he/she is identified as a prudent and careful person who is always up to the standard • (Pengetua/guru tidak perlu wajib menjadi seorang yang dianggap sempurna tetapi memadai sekadar sebagai seorang yang munasabah)

18. Duty and Standard of Care (Kewajipan berjaga-jaga) • The concept of “in loco parentis” is to be practiced • Duty is an obligation that derives from the special relationship between parties such as that between an employee and a student, the district/government and an employee, or the district and a patron. • Standard of care is relative to the need and the occasion, what is proper under one circumstance may be negligent under another.

19. The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is the degree of care which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances. (California Supreme Court) • (Pentadbir dan guru di sekolah berada di bawah satu kewajipan bertindak secara good faith terhadap majikan mereka)

20. Isu mengimbangi kewajipan berjaga-jaga dengan keperluan memberi peluang kepada pelajar untuk memajukan kebolehan bertanggungjawab terhadap keselamatan diri sendiri • Kewajipan berjaga-jaga kepada pelajar oleh pihak sekolah terdiri daripada dua aspek: Memberikan penyeliaan yang cukup Menyediakan tempat dan kemudahan serta alat sekolah yang selamat

21. Foreseeability • If a school administrator/teacher could have, or should have, foreseen or anticipated an accident, the failure to do so may be ruled negligent. • The concept of foreseeability expects school employee to perform as a reasonably prudent person of similar training and circumstances could perform. • If the ordinary exercise of prudence and foresight could have prevented an accident, the courts have ruled schools to be negligent when they have not avoided a foreseeable danger to students or adults.

22. Types of negligence • Nonfeasance: Failing to act when there is a duty to act • Misfeasance: Acting, but in an improper manner • Malfeasance: Acting, but guided by a bad motive • Prerequisites for a negligence action: The defendant must have duty to plaintiff The defendant must have failed to exercise a reasonable standard of care in his/her actions The defendant’s actions must be the proximate cause of the injury to the plaintiff The plaintiff must prove that he/she suffered an actual injury

23. Empat syarat untuk plantif menuntut ganti rugi terhadap defendan • Kewajipan berjaga-jaga yang sedia ada • Kewajipan dimungkari akibat defendan gagal mematuhi tahap berjaga-jaga yang diperlukan (berdasarkan ujian orang yang munasabah) • Kemungkiran kewajipan oleh defendan menyebabkan plantif mengalami kecederaan • Terdapat satu perhubungan yang rapat antara kemungkiran dengan kecederaan plantif

24. Common conditions resultingin tort reliability for negligence • Failure to provide adequate supervision (foreseeability + proximate cause (refer to case 1), general and specific supervision (refer to case 2) • Foreseeability: If the school district could have, should have, foreseen or anticipated an accident, the failure to do so may be rule negligent • Failure to aid the injured/sick • Creation of further damage through misguided efforts • Permitting students to play unsafe games • Permitting use of defective equipment • Maintaining attractive nuisances (unprotected, unguarded, unsafe condition that attract a child to play – refer to case 3) • Failure to provide adequate instruction • Failure to give adequate warning

25. Entrusting dangerous devices to students incompetent to use them • Taking unreasonable risks • Improper organized field trips

26. Cases • Case 1 • A student was hit by a bat swung by another student. The teacher then was standing 30 feet away, passing milk, at the time of accident. Was the teacher liable? • Case 2 A six year old student was injured at a construction site next to an elementary school where remodeling was being done. School officials knew of the potential dangers at the site and reminded students daily to stay away from the area. No other precautions to protect students were taken. Was the school liable?

27. Case 3 • A young girl, who sustained an injury while watching a baseball game. While playing around an abandoned long-jump pit, she was frightened by a dog. She fell backward and cut her hand on a piece of broken glass in the pit that had been covered by sand. The girl presented evidence that the school knew of the dangerous condition as the school’s janitor and school authorities had received written notification of the condition of the pit. Was the school liable?

28. Case 5 • Cliff Brown, a fifth-grade teacher, was standing at the front of his class when there was a knock at the door. He opened the door to find a person he vaguely recognized. She said her name was Mrs. Parson and she needed to take her son Brian to the dentist. Brian got his books, left, and was never seen again.

29. Safety issues • Releasing a child to an adult • School personnel should be very cautious about the physical custody of children • Who has the parental right? • The legal parent is that person whom the legal system recognizes as having the legal rights of parenthood • How about child born to biological parents who are not married? • In the case of divorce, it depends on whether the court grants sole/jount custody

30. Case 6 • A high school band member, drowned in a hotel pool while on a trip with the band. The student dove in the pool and minutes later was found at the bottom of the pool. Two chaperons assigned to supervise the pool activity immediately provided mouth-to-mouth resuscitation and continued to do so until the ambulance arrived. The parents of the student claimed the school was negligent in failing to provide adequate supervision for their son, who did not know how to swim.

31. Case 4 • A student fell into a ditch while attempting to catch a pass in a game of football played during the school’s lunch period. The principal was aware of the ditch on the school’s property but had made minimal attempts to warn students and no attempt was made to fill the pitch

32. Types of negligence • Omission Harm occurs due to the lack of care the law expects of a reasonable individual (e.g. nonfeasance) • Commission Taking an improper action when there is a duty to acat • Misfeasance may be either an act of commission or an act of omission

33. Waiver of liability (permission slips) • It is not true under the law that a waiver of liability truly protects the school or the teacher from court action • Schools cannot be absolve of their obligation toward students by a parental waiver or release

34. Safety Issues • School Violence • Gang behaviors • Search and seizure

35. Gang behaviors Policy regarding Gang Activity (Developed by the Midlothian, Illinois School Board) • No student on or about school property or at any school activity shall: Wear, possess, distribute, display or sell any clothing, jewelry, emblem, badge, symbol, sign, or other things that is evidence of membership or affiliation in a gang Commit any act or omission or use any speech either verbal or nonverbal (gestures, handshakes, etc) showing membership or affiliation in a gang

36. Use any speech or commit any act or omission in furtherance of the interests of any gang/gang activity, including but not limited to: A. Soliciting others for membership in a gang B. Requesting any person to pay protection or otherwise intimidating or threatening any person: C. Committing any other illegal act or other violation of school district policies D. Inciting other students to act with physical violence upon any other person

37. Search and seizure Balancing the school’s legitimate need to obtain information and the students’ right to privacy A search shall be initiated by reasonable suspicion (less rigorous than probable cause required by a police officer) Level of suspicion varies on the circumstances or the situation (in case emergency) Source reliability Scope of the search: degree of intrusiveness from search of a locker to a strip search Reasonable suspicion vs. common sense Lockers remain the exclusive property of the school (fairly low degree of suspicion is needed)

38. Bookbags and purses Requires a higher standard of protection for students, therefore school authority must exercise greater care • Strip searches The most controversial search The courts have generally condemned strip searches in public schools A body cavity search is the most intrusive type of search and should not be conducted by school employee

39. Student Discipline • Due process: Procedural and substantive due process • Corporal punishment is physical punishment applied to modify behavior • The use of corporal punishment is based on the concept of in loco parentis • Corporal punishment must be differentiated from assault and battery • Assault is the intentional thereat of harmful or offensive contact. The words must be accompanied by some overt act, no matter how slight, that adds to the threatening character of the words

40. Battery is the actual intentional infliction of harmful or offensive bodily contact. It is the intent to make contact and not intent to make injury. For example, a teacher has intended only to threaten a student by grabbing the student’s arm and accidentally injures the student