LEGAL ANALYSIS OF EAST LEE MIDDLE SCHOOL: TORTS AND NEGLIGENCE

A schools first duty should always be to the children that attend it. The staff of a school
must not only teach students but also keep them safe, even from themselves. A school day can
be broken down into five key times for potential negligence; before and after school,
transitioning between classes, lunch, athletic events, and outside recess. Teachers and staff will
need to keep a keen eye on the students at these crucial times. If an incident were to occur
during the school day due to a lack of supervision, the school could be liable of tort.
Tort law offers civil remedies to individuals for harm caused by unreasonable conduct of
others. Most tort cases primarily involve state law and are grounded in the fundamental
premise that individuals are liable for the consequences of their conduct that result in injury to
others (McCabe & McCarthy, 2014, p. 20). Teachers are held to a higher responsibility because
they are in charge of children. From the moment those students step on to school property to
the moment they step off of school property, school employees must keep a close eye on the
students under their charge. School property can include parking lots, athletic fields, buses, or
the school building itself.
Tort actions that relate to schools can be grouped into three primary categories:
negligence, intentional torts, and defamation (McCabe & McCarthy, 2014, p. 20). When a
teacher fails to protect a student from harm due to lack of supervision, they are liable of a
negligence tort. When a teacher faces a negligence tort, the following four elements must be
proven: Duty, Breach of Duty, Causation, and Injury. School employees have a common law
duty to anticipate foreseeable dangers and to take the necessary precautions to protect all

LEGAL ANALYSIS OF EAST LEE MIDDLE SCHOOL: TORTS AND NEGLIGENCE

students on school property. If a duty is breached the individual must show that it was the
failure of another to exercise appropriate standard of care (McCabe & McCarthy, 2014, p. 27).
There are three factors to consider when determining the degree of care a teacher owes
to a student. The first is the age, experience, and maturity level of the students entrusted to
their care. For example, a teacher of a middle school student must provide more supervision
than a teacher of a high school student. The second is the environment where the incident
occurred. For example, a woodworking class will require closer supervision than an English
class. The third is the type of activity, instructional or recreational, that was occurring when the
incident happened.
In order for a teacher to be found liable for negligence a plaintiff must demonstrate a
causal link between the negligent act and the harm. The plaintiff then must show that the
school employees conduct that led to a breach of duty caused the harm. In negligence torts
there are two types of causation to consider. The first is cause-in-fact, where the but for test
is employed to check to see if the teachers action or failure to act caused the injury. The second
is proximate cause, where the teachers action is close enough to the chain of events that
caused the harm. For example, there must be a connection between the negligent conduct and
the resulting injury (McCabe & McCarthy, 2014, p. 28).
In order for legal negligence to exist an actual injury must occur as a direct result of the
individual or by the individuals property. In most states, there is a statue of limitations of one
to three years on tort claims, although the actual time could be greater (McCabe & McCarthy,
2014, p. 29). As a teacher, when a student is injured on school grounds, there is a duty to

LEGAL ANALYSIS OF EAST LEE MIDDLE SCHOOL: TORTS AND NEGLIGENCE

provide reasonable assistance to the injured party. When reasonable treatment is provided,
there will generally be no liability assessed.
One place where negligence can occur to students is before or after school. Some
places to be careful are; the dropping off of students in the morning, buses, student pick up in
the afternoon, and students walking home after school. During these times, especially in the
morning when teachers are still tired, there can be a greater chance of negligence. Teachers
must not become lazy when it comes to the safety of students no matter what time of day it is.
Schools should set a time and make it known to parents when teachers go on duty in
the mornings and it is safe for students to be dropped off. Parents tend to be in a hurry to get
to work in the mornings and that can cause problems when they drop their students off before
there is a school employee to supervise them. Once morning supervision has started a school
official must keep a close watch on the students because a school district has an expressed or
implied duty to provide supervision on school grounds before school hours. School-parent
communication is very key in this case because the school and the parents must work together
to keep the students safe from harm.
The use of buses is a vital part of getting children to and from school. It is very
important that every school employee that operates a bus knows what his or her
responsibilities are and be refreshed every year. Personnel should strictly adhere to
transportation requirements, including those related to special licensure; background checks of
drivers; vehicle maintenance; driving, loading, and unloading practices; conduct during
transport; and criteria for when an aide is to be assigned (McCabe & McCarthy, 2014, p. 24).

LEGAL ANALYSIS OF EAST LEE MIDDLE SCHOOL: TORTS AND NEGLIGENCE

Schools must also look carefully at the safety of bus stop location and make sure students and
parents are aware of the consequences of misconduct while waiting for a school bus to arrive.
A school district was found guilty when a student was injured at a bus stop because they were
aware of the conduct of the students at a bus stop, which was located nearby a busy street with
fast-moving traffic, and the availability of a safer bus stop (Warrington v. TEMPE ELEMENTARY
SCHOOL, n.d.). It is very important that each bus driver checks thoroughly that all students
have exited the buses in the morning, especially on hot days. No student should be left on a
bus unsupervised, even by accident. A Texas appeals court determined that immunity would be
waived in part where a five-year-old child fell asleep on her way to school and was locked in the
bus for the remainder of the school day (Elgin Independent School Dist. v. RN, n.d.). It is very
important for school employees to be trained on the proper use of buses and to use extra care
when operating the bus with students to avoid negligence torts.
After school, a school employee must be present to help dismiss students who are
picked up from school to make sure that they are safe and are picked up by the proper person.
School employees need to keep students from harm, from foreseeable events that may cause
injury. The large amounts of vehicles that are on school grounds at the end of that day creates
an event that could potentially lead to student injury and thus it is the responsibility of the
school to make sure those students are properly monitored and are safe. Schools must also
make sure that all change of transportation are verified to keep students safe, this is especially
true when there are custodial issues between parents. A student should only be picked up by a
proper guardian if no change of transportation is confirmed.

LEGAL ANALYSIS OF EAST LEE MIDDLE SCHOOL: TORTS AND NEGLIGENCE

School employees should be aware of which students walk home and where they walk
to in order to make sure there are no dangers that could occur. If a foreseeable injury could
occur then crossing guards should be made available, for example at busy intersections.
Assistance should also be provided to parents and children to help identify safe routes to and
from school. Schools should try to do what they can to make sure that students that walk to
and from school are as safe as possible.
School employees should remain vigilant about student supervision and safety once the
school day has begun. Hallways monitoring may not be glamorous or fun, but it is very
important to keeping students safe. Potential areas where students may act up if unsupervised
are: Changing Classrooms, the bathroom, at their lockers, and walking to the buses in the
afternoon. Teachers cannot be everywhere but they should try to station themselves where
they can see as many students as possible.
There are many different ways that schools can transition from class to class, but no
matter how a school transitions a teachers should supervise the students as they do. One way
to transition would be walking students in a single file line. This tends to be more of an
elementary practice because the age, experience, and maturity level of the students is very low.
As students get older they can gain more freedoms, unfortunately what can also happen is that
teachers get lazier with keeping an eye on their students as well. Teachers still need to keep a
watchful eye when they give their students more freedom and responsibility because that is
when incidents will occur.

LEGAL ANALYSIS OF EAST LEE MIDDLE SCHOOL: TORTS AND NEGLIGENCE

Bathrooms are a tricky situation which can be handled in two ways, sending students
one at a time or going as a whole group. There is legal precedent to support both ways of
sending student to the bathroom. A Kentucky court case found it reasonable to send a
nondisruptive student to leave the classroom to use an adjacent restroom (Patel v. Kent
School Dist., n.d.). The key to sending students one at a time is making a judgment call as a
professional adult that the child is mature enough to handle going alone. If students are not
mature enough to go alone then an incident can occur. In one such case, the court found the
school district liable for negligence because the evidence suggested that the teacher had been
on notice about previous problematic behavior in the restroom involving the same students.
When the students had been playing in the bathroom for four minutes a student was injured
after being picked up and dropped on the floor (JOHNSON v. KEN-TON UNION FREE SCHOOL
DISTRICT, n.d.). Teachers and administrators as the professionals in the school need to know
when students can handle going to the bathroom individually or as a group to prevent student
injury.
One of the major opportunities for negligence to happen is during student athletics.
Coaches and teachers must go above and beyond to keep their players safe and have proper
documentation to prevent an incident from turning into a negligence tort. In certain sports,
such as football, no matter how careful a coach is an injury will likely happen. In a more
dangerous sport it imperative that the parents sign a permission slip saying that they know the
risks and that they will still allow their child to play. Teachers should be aware of the following
times when negligence could occur: During practice, in the locker rooms, during games, and
after practice.

LEGAL ANALYSIS OF EAST LEE MIDDLE SCHOOL: TORTS AND NEGLIGENCE

Inherent risks are associated with athletics, however not all participants will necessarily
understand those risks. Because of this it is important to have guardians sign a waiver that lists
out the dangers of the sport. School personnel must exercise reasonable care to protect
students from unassumed or high risks. Staff members meet their legal responsibility when
participation is voluntary and the student is knowledgeable of and assumes the risks associated
with the activity. A case in Indiana, a football player died following extensive conditioning in
hot and humid weather. The court favored the district because the mother of the student had
signed a release form providing permission for him to participate in organized athletics and
acknowledged that injury even death may result (Stowers v. Clinton Cent. School Corp., n.d.)
This does not however give a coach the right to expose their players to dangerous conditions
that represent a reckless disregard for the safety of others. Football coaches should be aware
of practices that directly relate to their sport such as concussion management plans, which
educate students, parents, and school personnel about concussion prevention and responses.
Staff member must go above and beyond when preparing for a season and while coaching a
season due to the higher likely chance of injury associated with sports.
Recess is a time when a school needs to be vigilant to opportunities for negligence.
Students will want to use the school grounds equipment, such as soccer goals, basketball
hoops, playground structures, etc. A school will need to examine those pieces of equipment for
potential injuries. In the court case Arteman v. Clinton Cmty. Unit Sch. Dist. In addition to
maintaining buildings and grounds, school personnel are required to maintain equipment and
to use it safely, such as in woodshop, science labs, athletics, or transportation (ARTEMAN v.
CLINTON COM. UNIT SCHOOL DIST., n.d.). If a student is hurt due to improperly maintained

LEGAL ANALYSIS OF EAST LEE MIDDLE SCHOOL: TORTS AND NEGLIGENCE

school grounds, such as a drainage ditch or rusty soccer goals, they can be liable for negligence.
School employees should look at the condition of their equipment before letting students use
them to keep them safe.
Schools need to protect their students from attractive nuisances. A pond on school
grounds can constitute as an attractive nuisance because it is dangerous but will attract
students to it. Districts can be held liable when they are aware of, or should be aware of,
hazardous conditions and do not take the necessary steps to repair or correct the conditions. In
a case from Michigan a school district was found liable when a student lost sight in one eye due
to dirt fights that had been brought to the attention of school officials and nothing was done to
remedy the situation (Monfils v. City of Sterling Heights, n.d.). School employees should
always take concerns of dangerous equipment or attractive nuisances seriously and look to
resolve the issue before a student become injured. Something as simple as a hill that students
like to roll down could be an attractive nuisance if the school grounds have a fire ant issue.
Students will look at the hill and want to roll down it but they would have the possibility of get
bit by fire ants which would cause the possibility of negligence. The ease of making a
dangerous pond off limits or removing rusty soccer goals is worth looking into and taking care
over the possibility a student could be hurt.
When students are at school there are many opportunities for a negligence to happen,
however if a teacher is doing their job and an accident were to happen there are some defenses
against Negligence. A teacher might find protection under the federal law, Paul D. Coverdell
teacher Protection Act. This act provides protection to teachers who are acting within the

LEGAL ANALYSIS OF EAST LEE MIDDLE SCHOOL: TORTS AND NEGLIGENCE

scope of the teachers employment or responsibilities to a school or when the teacher is
attempting to control, discipline, expel, or suspend a student or maintain order or control in
the classroom or school (McCabe & McCarthy, 2014, p. 29). There are several other defenses
available to school employees such as: contributory negligence, comparative negligence, and
assumption of risk.
When assessing if contributory negligence exists, children will not held to the same
standard as adults. It is assessed based on whether their actions are the same as reasonable
persons of similar age, maturity, intelligence, and experience. Courts have established age
ranges in effort to more objectively and uniformly determine whether children have the
capacity to contribute or cause their own injuries. Children below the age of seven are
considered incapable of negligence, seven to fourteen are considered incapable but this
presumption can be rebutted, and fourteen and over are generally presumed capable of
negligence (McCabe & McCarthy, 2014, p. 30). With comparative negligence, courts will split
responsibility of fault between the school district and the student who was injured. For
example, a school district in Wisconsin was found eighty percent liable for an injury sustained
by an eighth grade student while dissecting a plant with a scalpel. The court observed that the
teacher had been aware that others had been injured in the past and that she could have done
more to avoid this injury (Heuser Ex Rel. Jacobs v. COMM. INS. CORP., n.d.). The defense of
assumption of risk can either be expressed or implied. Expressed assumption occurs when a
student and parent consents in advance to the possibility of injury. This can be done in the
form of a permission slip or wavier. Implied assumption occurs when there is a logically

LEGAL ANALYSIS OF EAST LEE MIDDLE SCHOOL: TORTS AND NEGLIGENCE

assumed conduct. For example, implied assumption would exist where spectators at a baseball
game elect to sit in unscreened seats (McCabe & McCarthy, 2014, p. 31).
Even though there are defenses against negligence, the best defense is for an injury not
to happen. School employees should always be aware of the safety of the students at their
school. Before and after school, in the hallways, and participating in sports are just a few times
and places when a student may be injured. Students will be assessed on their age, experience,
and maturity level; so school employees should respond accordingly. Sixth grade students will
need more supervision than eighth grade students, however eighth grade students will still
need supervision. School employees should be aware of the environment within which an
incident can occur and adjust their level of supervision accordingly. Parents entrust their
childrens safety with school employees which means school employees should protect each
child as though they were their own.

LEGAL ANALYSIS OF EAST LEE MIDDLE SCHOOL: TORTS AND NEGLIGENCE

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