Tort Liability 101:Tort Liability 101:

Protecting the Rights of Students Protecting the Rights of Students and Staffand Staff

Tort Liability Tort Liability

What is a tort? A tort is committed

when you injure a person, their property or their reputation. It doesn’t matter whether the injury was done on purpose or by accident. You may be sued by the victim in civil court.

Tort Liability Tort Liability

Some torts are also crimes, so you could be tried in two different courts for the same conduct. If you’re found liable, you could be ordered to pay all resulting damages.

What is Our Obligation?What is Our Obligation?

To be rational, relevant, and reasonable in To be rational, relevant, and reasonable in our judgmentsour judgments

To be wise in how we create and influence To be wise in how we create and influence our school cultureour school culture

To be careful to comply with district and To be careful to comply with district and state laws (42 U.S.C. § 1983)state laws (42 U.S.C. § 1983)

To create safe learning placesTo create safe learning places To protect the most vulnerable from To protect the most vulnerable from

themselves and othersthemselves and others

It’s not my fault!It’s not my fault!

Tort liability has two prongs that often Tort liability has two prongs that often overlap:overlap: Intentional or Deliberate Actions Intentional or Deliberate Actions Non-Intentional or Negligent Actions Non-Intentional or Negligent Actions

Intentional ActionsIntentional Actions

Negligent driving — injuring persons and/or property. Assault — unlawfully attempting to touch or hurt

another person. Battery — intentionally touching another person

without his or her consent. False imprisonment — keeping someone in a room or

car or other place so he can’t leave. Defamation — an unlawful written or spoken attack on

the reputation or good name of a person.

Intentional ActionsIntentional Actions

Slander - deliberate gossip intended to hurt the Slander - deliberate gossip intended to hurt the individualindividual

Malicious prosecution - legal harassmentMalicious prosecution - legal harassment Mental distress - causing emotional duress that Mental distress - causing emotional duress that

leads to medical careleads to medical care Trespassing - invasion of privacyTrespassing - invasion of privacy

(CC §§ 44-48.8)

Non-Intentional Actions - Non-Intentional Actions - NegligenceNegligence

There is no proof of intent or willfulnessThere is no proof of intent or willfulness Fourfold test Fourfold test

Standard of careStandard of care Breach of dutyBreach of duty Proximity legal causeProximity legal cause InjuryInjury

(2008, Essex, p. 181-184)(2008, Essex, p. 181-184)

The Court DecidesThe Court Decides

Who is at fault and to what extent?Who is at fault and to what extent? IndividualsIndividuals Respondeat superiorRespondeat superior ForseeabilityForseeability NuisanceNuisance InviteesInvitees LicenseesLicensees TrespassersTrespassers

Tort Liability DefensesTort Liability Defenses

Assumption of riskAssumption of risk Contributory negligenceContributory negligence Comparative negligenceComparative negligence ImmunityImmunity

Cases for Review - you decide?!Cases for Review - you decide?!

Garcia v. PuccioGarcia v. Puccio, 793 N.Y.S.2d 382 (N.Y. , 793 N.Y.S.2d 382 (N.Y. App. Div. 2005)App. Div. 2005)

Saxon v. Chapman No. 266077Saxon v. Chapman No. 266077, 2006 W.L. , 2006 W.L. 1237036 (Mich Ct. App. 2006)1237036 (Mich Ct. App. 2006)

Cases for Review - you decide?!Cases for Review - you decide?!

Bradford Area School Dist. v. StonekingBradford Area School Dist. v. Stoneking, , 489 U.S. 1062, 109 S.Ct. 1333, 103 L.Ed.2d 489 U.S. 1062, 109 S.Ct. 1333, 103 L.Ed.2d 804 (1989)804 (1989)

Gebser v. Lago Vista Independent School Gebser v. Lago Vista Independent School DistDist., 524 U.S. 274, 118 S.Ct. 1989, 141 ., 524 U.S. 274, 118 S.Ct. 1989, 141 L.ED.2D 277 (1998)L.ED.2D 277 (1998)

Kurtz v. Unified School Dist. No. 308Kurtz v. Unified School Dist. No. 308, 65 , 65 Fed. Appx. 257 (10th Cir. 2003)Fed. Appx. 257 (10th Cir. 2003)

Cases for Review- you decide?!Cases for Review- you decide?!

Shinaberger v. LaPineShinaberger v. LaPine, 34P.3d 1253 (Wash. , 34P.3d 1253 (Wash. Ct. App. 2001)Ct. App. 2001)

McQueen v. Beecher Community SchoolsMcQueen v. Beecher Community Schools, , 433 F.3d 460 (6th Cir. 2006)433 F.3d 460 (6th Cir. 2006)

Mohammed v. School Dist. PhiladelphiaMohammed v. School Dist. Philadelphia, , 196 Fed.Appx. 79 (3rd Cir. 2006)196 Fed.Appx. 79 (3rd Cir. 2006)

Cases for Review- you decide?!Cases for Review- you decide?!

Aliffi v. Liberty County School DistAliffi v. Liberty County School Dist., 578 ., 578 S.E.2d 146 (Ga Ct. App. 2003)S.E.2d 146 (Ga Ct. App. 2003)

Doe v. San Antonio Independent School Doe v. San Antonio Independent School Dist.,Dist., 197 Fed.Appx. 296 (5th Cir. 2006) 197 Fed.Appx. 296 (5th Cir. 2006)

Barret v. Unified School Dist. No 259Barret v. Unified School Dist. No 259, 32 , 32 P.3d 1156 (Kan 2001)P.3d 1156 (Kan 2001)

Murray v. Chicago Youth Center No. 99457Murray v. Chicago Youth Center No. 99457, , 2006 W.L. 1822656 (Ill 2006)2006 W.L. 1822656 (Ill 2006)

Where do we go from here?Where do we go from here?

DeShaneyDeShaney and and InIn loco parentisloco parentis Pagano v. Massapequa Public Schools, Pagano v. Massapequa Public Schools, 714 F. 714 F.

Supp. 641 (E.D.N.Y. 1989)Supp. 641 (E.D.N.Y. 1989) Robert v. Newburgh City School Dist., Robert v. Newburgh City School Dist., No. 89 No. 89

Civ. 2978, 1990 U.S. Dist. LEXIS 91, 1990 W.L. Civ. 2978, 1990 U.S. Dist. LEXIS 91, 1990 W.L. 3210 (S.D.N.Y. Jan. 5, 1990)3210 (S.D.N.Y. Jan. 5, 1990)

J.O. v. Alton Community School Dist. 11, J.O. v. Alton Community School Dist. 11, 909 909 F.2d 267 (7th Cir. 1990)F.2d 267 (7th Cir. 1990)

Duty to act to protect our students and staff - Duty to act to protect our students and staff - maintaining safe learning placesmaintaining safe learning places

ReferencesReferences

Essex, N. (2008). Essex, N. (2008). School law and the public schools. School law and the public schools. (4th ed.). Boston, MA: Pearson.(4th ed.). Boston, MA: Pearson.

Huefner, S. (1990). Affirmative duties in public schools Huefner, S. (1990). Affirmative duties in public schools after “Deshaney.” after “Deshaney.” Columbia Law Review, 90Columbia Law Review, 90(7), 1940-(7), 1940-1972. 1972.

Roth, J., D’Agostino, T., & Brown, C. (Eds.). (2007). Roth, J., D’Agostino, T., & Brown, C. (Eds.). (2007). Deskbook encyclopedia of American school law. Deskbook encyclopedia of American school law. Malvern, PA: Center for Education and Employment Malvern, PA: Center for Education and Employment Law.Law.

Weltzin, F. (1933). Tort liability of school districts, Weltzin, F. (1933). Tort liability of school districts, officers, and teachers. officers, and teachers. Review of Educational Review of Educational Research, 3Research, 3(5), 415-420.(5), 415-420.