Risk Management: Creating a Safe Environment

1. Risk Management:Creating a Safe Environment

2. Learning Outcomes • Students are able to: • Describe the concept of in loco parentis as relates to duty and standard of care • Identify the coverage areas for managing risk • Recognize the importance of due process in handling student discipline • Explain the criteria to be prudent, reasonable, and foreseeable in avoiding negligent tort • Analyze cases to determine liability of educators

3. 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)

4. 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 • The student’s interests, welfare, and safety are directed by responsible adults trained as teachers and administrators • Duty and standard of care by educators

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

6. 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

7. 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

8. 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)

9. 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

10. Transportation • Third party liability • Contractual liability

11. 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:

12. 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

13. 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

14. 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

15. 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 penalties

16. Landmark CasesGoss v. Lopez (1975) Due Process • Nine students at an Ohio public school received 10-day suspensions for disruptive behavior without due process protections. The Supreme Court ruled for the students, saying that once the state provides an education for all of its citizens, it cannot deprive them of it without ensuring the process protections

17. Brown V. Board of Education (1954) • The court declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which allowed state-sponsored segregation. This ruling paved the way for integration and was a major victory of the civil rights movement

18. Goss v. Lopez (1975)Freedom of Speech at School • In December 1965, John and Mary Beth Tinker and their friend Chris Eckhardt wore black armbands to school in Des Moines, Iowa, to protest the war in Vietnam. School officials told them to remove the armbands, and when they refused, they were suspended (John, 15, from North High; Mary Beth, 13, from Warren Harding Junior High; and Chris, 16, from Roosevelt High). With their parents, they sued the school district, claiming a violation of their First Amendment right of freedom of speech. • Court ruled in favor of the student

19. New Jersey v. T.L.O. (1985)Privacy Rights at School • T.L.O. (Terry), a 14-year-old freshman at Piscataway High School in New Jersey, was caught smoking in a school bathroom by a teacher. The principal questioned her and asked to see her purse. Inside was a pack of cigarettes, rolling papers, and a small amount of marijuana. The police were called and Terry admitted selling drugs at school. • The Supreme Court ruled in favor of the school.

20. Ingraham v. Wright (1977)School Discipline • James Ingraham, a 14-year-old eighth-grader at Drew Junior High School in Miami, was taken to the principal's office after a teacher accused him of being rowdy in the school auditorium. The principal decided to give him five swats with a paddle, but James said that he hadn't done anything wrong and refused to be punished. He was subsequently held down while the principal gave him 20 swats. • While corporal punishment was permitted in the school district, James suffered bruises that kept him out of school for 10 days and he had to seek medical attention. James and his mother sued the principal and other school officials, claiming the paddling violated Eighth Amendment protections against "cruel and unusual punishments." • The Supreme Court ruled against James.

21. Vernonia School District v. Acton (1995)Student Athletes and Drug Testing • James Acton, a 12-year-old seventh-grader at Washington Grade School in Vernonia, Oregon, wanted to try out for the football team. His school required all student athletes to take drug tests at the beginning of the season and on a random basis during the school year. James's parents refused to let him be tested because, they said, there was no evidence that he used drugs or alcohol. The school suspended James from sports for the season. He and his parents sued the school district, arguing that mandatory drug testing without suspicion of illegal activity constituted an unreasonable search under the Fourth Amendment. • The Supreme Court ruled in favor of the school district.

22. Surat Pekeliling Ikhtisas • Bil. 6/68 • Pembuangan murid-murid daripada sekolah rendah kerana kelakuan curang • Bil. 6A 1975 • Disiplin murid-murid menghisap rokok • Bil. 2/1976 • Potongan rambut murid-murid • Bil. 8/1983 • Mengenakan hukuman biasa terhadap murid-murid yang melakukan perbuatan salah laku yang tidak dinyatakan dalam peraturan-peraturan pelajaran • Bil.3 1993 • Lapor kepada polis salah laku yang berbentuk jenayah • Bil. 7/1995 • Tatacara mengenakan tindakan dan hukuman terhadap pelajar-pelajar sekolah

23. 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 (Kecuaian merupakan asas kepada dakwaan liabiliti yang dikemukakan terhadap ke atas sekolah)

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

25. Two Major Categories of Torts • Intentional Tort • Refer to offenses committed by a person who attempts/intends to do harm • Intent refers to the awareness that injury will be the result of the act • A common type of intentional tort is assault or battery • Assault refers to an overt attempt to physically injure a person/create a feeling of fear and apprehension of injury • No actual physical need to take place for an assault to take place

26. Battery is an intentional tort that results from physical contact • A person threatens another causing apprehension and fear (assault) + actually strikes another person and result in injury (battery) = International tort

27. Contoh Kes • Seorang guru mendapati dua orang pelajar sedang bertumbuk dan bertindak untuk meleraikan mereka. Dalam proses berbuat demikian, salah orang pelajar berdegil dan mendakwa guru tersebut telah mencabar hak asasi beliau kerana memegang tangannya dan memekik “Lepaskan tangan aku, saya berhak untuk berbuat demikian!” • Bolehkah guru ini didakwa di bawah kesalahan “assault/battery?”

28. Compensatory damages vs. punitive damages • Compensatory damages: Actual loses (medical bills, lost wages/income/court costs and the such) • Punitive damages: Monetary awards to punish the defendants for wrongful actions and deter such actions in the future

29. 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)

30. The degree care exercised by a reasonable teacher is determined by: • Training and experience of the teacher involved • Students’ age • The environment in which the injury occur • The type of instructional activity • The presence/absence of the supervising teacher • Students’ disability (if any)

31. Duty and Standard of Care (Kewajipan/Standard 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. • The duty to protect is part of teachers’/administrators’ responsibilities • Standard of care is relative to the need and the occasion, what is proper under one circumstance may be negligent under another.

32. 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)

33. Duties include, but not confine to the following: • Adequate supervision • Maintenance of equipment and facilities • Heightened supervision of high-risk activities

34. (Pentadbir dan guru di sekolah berada di bawah satu kewajipan bertindak secara good faith terhadap majikan mereka) • 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

35. Duty and Standard of Care and Student Age • Two age levels are significant in terms of court decisions: Ages 1 – 14 and Ages 15 – 18 • Dunklee and Shoop (2006) believe that the required degree of duty and standard of care decreases during the elementary school years • The onset of puberty and adolescence may require a return to maximum levels of duty and standard of care during the middle school years, and that the required level decreases progressively for senior and high school students

36. Foreseeability • Foreseeability is the degree to which the defendant could have or should have reasonably been able to anticipate the risk of injury /harm to the plaintiff that might result from the action/inaction (Alexander & Alexander, 2002) • Foreseeability regarding the risks in an educational setting is greater due to educators’ superior knowledge, special skills, and professional experience • 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.

37. 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

38. 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

39. Contributory Negligence • The injury is caused by student’s own negligence (need to be proved) then it is considered that the student has contributed to his/her own injury • When a student disregards the instruction, warning,/advise of an educator, the student can be held liable for his/her own injury • The courts (to date) have held that children under the age of 7 may not be held responsible for their own negligence

40. 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

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

42. 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?

43. 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?

44. 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.

45. 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

46. 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.

47. 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

48. 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

49. Waiver of liability (permission slips) • Don’t rely on waivers because parents cannot waive their children’ claims for damages • Waivers are useful for public relations purposes • 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 • Parental waivers/permission slips do not relieve teachers/schools of liability if they fail to discharge their duties in an appropriate manner

50. Safety Issues • Abuse of students • School Violence • Gang behaviors • Search and seizure