Our children spend close to eight hours per day, five days per week, meandering about the campus of their elementary, middle or high school. Inevitably, accidents occur. Some involve minor cuts and scrapes, while others involve seriously life-threatening injuries.
Once the dust settles, however, what are the child’s rights with regard to civil restitution and possible money damages to compensate for the harm? How does the child’s status as a minor work to necessarily involve his parent or guardian in the litigation?
And lastly, how does the 11th Amendment and the doctrine of sovereign immunity operate in the context of public school injuries? We address these questions below, as well as the imposition of liability, if any, in the event a child is harmed while off school property.
Injuries while at school: Who is liable?
We begin with the very broad general principle that while a child is at school, teachers and administrators have a duty to protect the child from known, anticipated or, in some cases, speculative harm.
In other words, if a teacher or principal knows about a potential danger, can foresee danger occurring, or can speculate that danger is likely to occur based on prior experience, he is under the legal duty to take steps to protect the students.
How does this play out in real life? Simple examples may include canceling school for inclement weather to avoid injuries en route,expelling a student for making a terroristic threat or ensuring elevators are regularly inspected for defect.
Failure by school officials to take precautions against circumstances that can easily lead to foreseeable risk of harm could give rise to a cause of action for negligence if a child is injured and the school did nothing to prevent the incident.
On the other hand, schools are generally not liable for injuries occurring due to incidents that a reasonably informed, observant official would have no reason to expect. This defense is generally applicable to obscure and unexpected events, like an adverse allergic reaction to the school lunch, a sudden and unpredicted weather event or a school shooting.
How far does the liability extend?
We have established that schools are required to keep students safe during the day, but to what extent? Certainly, safety extends to the school bus, soccer fields during scheduled practices, and on school trips, assuming the parents have not signed a waiver of liability.
But what about a non-school-sanctioned quick trip to the mall during the lunch hour? Or what if a student is injured while driving to a school event, like a football game or band recital?
The short answer is that it depends. In the first scenario describing the high school student who leaves during the school day to hit the mall, most courts would find that the school’s duty to keep the child safe ended once the student left the parking lot. Reason being, the child left school property of his or her own volition to pursue personal interests separate from any school-sanctioned activity.
However, in the second example, a student injured on the way to a school activity may have a stronger case for negligence, particularly if the facts suggest the student was over-tired, required to drive in inclement weather or mandated to make the trip despite being a new or inexperienced driver.
In addition to the factors discussed above, sovereign immunity laws may impose limitations on the amount of money an injured child can recover from the school. Also known in some jurisdictions as tort claims, these constitutional provisions either eliminate state exposure to liability or significantly limit it. The extent of liability a public school can face varies greatly from state to state.
Read more on Avvo’s Education Law topic page.
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3 comments
Teressa
Who's liable when your son is physically assaulted three different times by three different kids only in kindergarten
Danielle Post
Hi Teressa, I'm so sorry to hear about this situation -- I hope your son is okay. Your question would be best answered by an attorney in our free Q&A forum. Attorneys do not provide advice through our blog, but they do in the forum, usually within the first day or two of posting. All questions are open to answers for seven days. You can post your questions here when you're ready: http://www.avvo.com/ask-a-lawyer. Avvo also offers a wealth of legal information in our Knowledge Base here: http://www.avvo.com/free-legal-advice. I hope this is helpful! Kindly, Danielle
Personal Injury Team
Australian laws suggest that public gatherings of any sort, be it once-off events to permanent public places as schools, shopping centres, etc. require the administrators of such places to ensure the organization responsible in the form of Public Liability Insurance. Accidents hence are bound to occur relative to the critical mass of people in this/these areas. The more people, the more naked and potentially hazardous obstacles, the greater risk. That said, initiating litigation involving a blame game about public safety or accidents in any public place, e.g. a school environment, begs for coherent judgement.