1. Chapter Nineteen Chapter Nineteen Negligence in Schools Chapter Nineteen Definition of Negligence Definition of Negligence Definition of Negligence Definition of Negligence Legal Duty of Care Legal Duty of Care Legal Duty of Care Legal Duty of Care Breach of the Duty of Care Breach of the Duty of Care Breach of the Duty of Care Breach of the Duty of Care Actual Damage Actual Damage Actual Damage Actual Damage Causal Proximity Causal Proximity Causal Proximity Causal Proximity Sources of Liability in Schools Sources of Liability in Schools Sources of Liability in Schools Sources of Liability in Schools Occupiers' Liability Occupiers' Liability Occupiers' Liability Occupiers' Liability Supervisory Obligations Supervisory Obligations Supervisory Obligations Supervisory Obligations Statutory Obligations Statutory Obligations Statutory Obligations Statutory Obligations Some Negligence Principles Some Negligence Principles Some Negligence Principles Some Negligence Principles Contributory Negligence Contributory Negligence Contributory Negligence Contributory Negligence Vicarious Liability Vicarious Liability Vicarious Liability Vicarious Liability Voluntary Assumption of Risk Voluntary Assumption of Risk Voluntary Assumption of Risk Voluntary Assumption of Risk Thin-Skulled Plaintiffs Thin-Skulled Plaintiffs Thin-Skulled Plaintiffs Thin-Skulled Plaintiffs Common Practice Common Practice Common Practice Common Practice Determining Negligence Determining Negligence Determining Negligence Determining Negligence Negligence of Students Negligence of Students Negligence of Students Negligence of Students Interns and Substitute Teachers Interns and Substitute Teachers Interns and Substitute Teachers Interns and Substitute Teachers Volunteers Volunteers Volunteers Outside School Property Outside School Property Outside School Property Outside School Property Outside School Hours Outside School Hours Outside School Hours Outside School Hours School Physical Plant School Physical Plant School Construction Sites School Construction Sites Gymnastics Handicapped Students Handicapped Students Impaired Invitees Impaired Invitees Ignoring Injuries Ignoring Injuries Limitations on Liability Limitations on Liability Exemplary Cases Exemplary Cases Plumb Case Plumb Case Cropp Case Cropp Case Wiggins Case Wiggins Case Simard Case Simard Case Road Pizza Case Road Pizza Case Judicial Decisions Judicial Decisions Plumb Decision Plumb Decision Cropp Decision Cropp Decision Wiggins Decision Wiggins Decision Simard Decision Simard Decision Road Pizza Decision Road Pizza Decision Conclusions

2. Negligence A tort is a private wrong... that causes damage and for which courts will award compensation. A tort is a private wrong... that causes damage and for which courts will award compensation. A person who commits a tort is known as a tortfeasor, A person who commits a tort is known as a tortfeasor, the party whose person, property, or reputation is damaged is called a victim. the party whose person, property, or reputation is damaged is called a victim. Torts may be intentional, (E.g. assault, false imprisonment, infliction of mental suffering, libel, and slander) or unintentional as in the case of negligence and strict liability. Torts may be intentional, (E.g. assault, false imprisonment, infliction of mental suffering, libel, and slander) or unintentional as in the case of negligence and strict liability. Torts and contracts together form most of... private law. Torts and contracts together form most of... private law.

3. Definition of Negligence Definition of Negligence Negligence is the failure to do something that a reasonable and prudent person would do or the commission of an act that such a person would not commit. Negligence is the failure to do something that a reasonable and prudent person would do or the commission of an act that such a person would not commit. There are four elements of negligence, all of which must be present for there to be negligence. These are There are four elements of negligence, all of which must be present for there to be negligence. These are legal duty of care, legal duty of care, breach of the duty of care, breach of the duty of care, actual damage, and actual damage, and causal proximity. causal proximity.

4. Four Elements of Negligence Legal Duty of Care Legal Duty of Care To be negligent the defendant must have had a duty of care in law,... to the plaintiff.... To be negligent the defendant must have had a duty of care in law,... to the plaintiff.... school boards and teachers have a duty of care to pupils while they are involved in curricular or extracurricular activities (on or off the school premises) school boards and teachers have a duty of care to pupils while they are involved in curricular or extracurricular activities (on or off the school premises) A duty of care may also exist outside of school hours (on the school grounds and within board-operated pupil transportation). A duty of care may also exist outside of school hours (on the school grounds and within board-operated pupil transportation). Breach of the Duty of Care Breach of the Duty of Care The defendant must have breached that duty by a positive act or by an omission.... The defendant must have breached that duty by a positive act or by an omission.... The duty of care involves taking precautions to guard against foreseeable risks, but not all risks are foreseeable, even by an alert and competent person. The duty of care involves taking precautions to guard against foreseeable risks, but not all risks are foreseeable, even by an alert and competent person.

5. Actual Damage Actual Damage The plaintiff must have suffered actual damage or injury. (meaning personal injury of a pupil) The plaintiff must have suffered actual damage or injury. (meaning personal injury of a pupil).Even serious breaches of a duty of care are not negligent if no one suffers damage as a result....Even serious breaches of a duty of care are not negligent if no one suffers damage as a result... compensation paid to a victim of negligence depends on the extent of the damage; hence, no damage means no compensation and no case for the courts. compensation paid to a victim of negligence depends on the extent of the damage; hence, no damage means no compensation and no case for the courts. Causal Proximity Causal Proximity damage suffered by the plaintiff must be the result of the defendant's negligent action or inaction... This is called causal proximity, proximate cause, or legal cause. damage suffered by the plaintiff must be the result of the defendant's negligent action or inaction... This is called causal proximity, proximate cause, or legal cause. the defendant's behaviour need not be the only cause of the damage. A “but-for” test is frequently applied. the defendant's behaviour need not be the only cause of the damage. A “but-for” test is frequently applied. One event is said to be the cause of another when the first event is necessary for the second, whether or not there are intervening events... One event is said to be the cause of another when the first event is necessary for the second, whether or not there are intervening events... courts are reluctant to find negligence if the damage is very remote from the breach of the duty of care. courts are reluctant to find negligence if the damage is very remote from the breach of the duty of care.

6. Sources of Liability in Schools Sources of Liability in Schools Negligence in schools generally involves a breach of the duty of care that the school board and its employees owe to their pupils Negligence in schools generally involves a breach of the duty of care that the school board and its employees owe to their pupils Two areas of responsibility to their pupils where breaches can constitute negligence are Two areas of responsibility to their pupils where breaches can constitute negligence are The obligation to keep their premises and equipment safe and The obligation to keep their premises and equipment safe and to provide reasonable supervision of pupils. to provide reasonable supervision of pupils.

7. Occupiers' Liability Occupiers' Liability The school board has an obligation as the occupier of the school facility, to eliminate, as much as possible, risks to persons who enter either the school or the school grounds. The school board has an obligation as the occupier of the school facility, to eliminate, as much as possible, risks to persons who enter either the school or the school grounds. three categories of persons three categories of persons trespassers, licensees, invitees, and compulsees (possibly the 4 TH )—who may be found on school premises and for whom the standard of care is different. trespassers, licensees, invitees, and compulsees (possibly the 4 TH )—who may be found on school premises and for whom the standard of care is different. Trespasser board has no obligation to make the school safe for someone who breaks in to commit theft or vandalism (is a trespasser even if also a student) board has no obligation to make the school safe for someone who breaks in to commit theft or vandalism (is a trespasser even if also a student) Traps cannot be set for trespassers, and trespassers must be warned about any unusual danger if their presence on the premises is known. Traps cannot be set for trespassers, and trespassers must be warned about any unusual danger if their presence on the premises is known.

8. Occupiers' Liability Occupiers' LiabilityLicensee A licensee is a guest of the occupier for social reasons. A licensee is a guest of the occupier for social reasons. standard of care required is higher than for the trespasser. standard of care required is higher than for the trespasser. A child trespasser may, depending on his or her age, be considered a licensee if the premises contain something attractive, called an “allurement” or an “attractive nuisance”, that induces the child to enter. A child trespasser may, depending on his or her age, be considered a licensee if the premises contain something attractive, called an “allurement” or an “attractive nuisance”, that induces the child to enter. Children on open school grounds for recreation outside of school hours are generally considered licensees. Children on open school grounds for recreation outside of school hours are generally considered licensees. licensee must be protected from unusual dangers of which the occupier is aware, licensee must be protected from unusual dangers of which the occupier is aware, E.g. known defective playground equipment should be repaired or removed from the playground. E.g. known defective playground equipment should be repaired or removed from the playground.

9. Occupiers' Liability Occupiers' LiabilityInvitee a person who has entered the premises for official or business purposes. a person who has entered the premises for official or business purposes. positive obligation to protect the invitee from unusual dangers that the occupier is or should be aware of. positive obligation to protect the invitee from unusual dangers that the occupier is or should be aware of. occupier must take reasonable measures to ensure that the premises are safe. occupier must take reasonable measures to ensure that the premises are safe. Pupils at school to receive an education are at least invitees. Pupils at school to receive an education are at least invitees.

10. Supervisory Obligations Supervisory Obligations Teachers must provide pupils with a level of supervision that will prevent foreseeable accidents from happening. Teachers must provide pupils with a level of supervision that will prevent foreseeable accidents from happening. The legal principle “in loco parentis”, (meaning in place of the parent) gives the teacher responsibility similar to that of a careful and prudent parent. Teaching is the only profession for which the required standard of care to clients is an extrapolation of parental behaviour. The legal principle “in loco parentis”, (meaning in place of the parent) gives the teacher responsibility similar to that of a careful and prudent parent. Teaching is the only profession for which the required standard of care to clients is an extrapolation of parental behaviour. courts have required teachers to have specialized knowledge of safety principles in their own subject areas ( e.g. physical education and subjects with shop or laboratory components). courts have required teachers to have specialized knowledge of safety principles in their own subject areas ( e.g. physical education and subjects with shop or laboratory components).

11. Four Supervisory Principles The following four supervisory principles,... Are representative of good practice in all provinces (Leduc, 460). The following four supervisory principles,... Are representative of good practice in all provinces (Leduc, 460). Students must be informed of the dangers inherent in the activity and must be instructed in safe practices before becoming involved in the activity. Students must be informed of the dangers inherent in the activity and must be instructed in safe practices before becoming involved in the activity. The teacher must be present during the activity and must be observing it with a view to avoiding accidents. The teacher must be present during the activity and must be observing it with a view to avoiding accidents. The location and the equipment must be suitable for the activity and must be safe. The location and the equipment must be suitable for the activity and must be safe. Parental consent must be obtained for activities undertaken outside the regular school program. Parental consent must be obtained for activities undertaken outside the regular school program.

12. Contributory Negligence When responsibility is apportioned on a percentage basis to all parties whose behaviour was negligent, including the victim. When responsibility is apportioned on a percentage basis to all parties whose behaviour was negligent, including the victim. A very young child cannot be guilty of contributory negligence. An older child may be; but it depends on the circumstances (Lord Denning) A very young child cannot be guilty of contributory negligence. An older child may be; but it depends on the circumstances (Lord Denning)

13. Vicarious Liability Vicarious Liability When one person is held legally responsible for the negligence of another even though the former is not personally negligent. When one person is held legally responsible for the negligence of another even though the former is not personally negligent. Employers are responsible for the torts of their employees committed in the course of their employment. Employers are responsible for the torts of their employees committed in the course of their employment. Vicarious liability increases the probability that victims can recover damages, since the employer normally has more financial resources than the employee. Vicarious liability increases the probability that victims can recover damages, since the employer normally has more financial resources than the employee. Employers are encouraged, on the one hand, to promote safety in their enterprises and, on the other hand, to purchase liability insurance. Employers are encouraged, on the one hand, to promote safety in their enterprises and, on the other hand, to purchase liability insurance. School boards in most, but not all, provinces purchase such insurance. School boards in most, but not all, provinces purchase such insurance.

14. Voluntary Assumption of Risk Voluntary Assumption of Risk The voluntary assumption of risk is a complete defence against a negligence action, The voluntary assumption of risk is a complete defence against a negligence action, if the victim understood that the activity was risky but willingly chose to participate. if the victim understood that the activity was risky but willingly chose to participate. This defence can be successful when the victim is an adult who has been fully informed of the risks and has...accepted them. This defence can be successful when the victim is an adult who has been fully informed of the risks and has...accepted them. the voluntary assumption of risk almost never succeeds as a defence against a charge of negligence in cases involving child victims. the voluntary assumption of risk almost never succeeds as a defence against a charge of negligence in cases involving child victims.

15. Common Practice Common Practice Conformity to common or general practice or to custom within a profession is usually a defence against negligence. Conformity to common or general practice or to custom within a profession is usually a defence against negligence. This principle is being increasingly adopted in school cases but is most widely applied in medical malpractice suits. This principle is being increasingly adopted in school cases but is most widely applied in medical malpractice suits. Juries consisting of lay persons listen to the evidence of expert witnesses as to whether the procedures used by the defendant are commonly accepted within the profession. Juries consisting of lay persons listen to the evidence of expert witnesses as to whether the procedures used by the defendant are commonly accepted within the profession.

16. Determining Negligence Determining Negligence General principles Determining Negligence of Students Negligence of Students Teachers are in much the same position as parents in regards to the negligent acts of children whom they are required to supervise. Teachers are in much the same position as parents in regards to the negligent acts of children whom they are required to supervise. Teachers are not responsible unless they themselves have been negligent in discharging their supervisory responsibilities. Teachers are not responsible unless they themselves have been negligent in discharging their supervisory responsibilities. If a student is injured because of the actions of another student, the teacher can be held contributorily negligent if he or she did not provide adequate supervision. If a student is injured because of the actions of another student, the teacher can be held contributorily negligent if he or she did not provide adequate supervision.

17. Interns and Substitute Teachers Interns and Substitute Teachers A beginning teacher or a substitute who has no competence in the subject matter can usually prevent accidents as adequately as an experienced teacher However: Negligence law makes few concessions to beginners and even fewer to those who attempt an activity for which they are not qualified. Negligence law makes few concessions to beginners and even fewer to those who attempt an activity for which they are not qualified. an unqualified teacher has a strong obligation to avoid any risky activity (in for example, laboratories, shops, and many physical education activities) regardless of what the regular teacher's lesson plan calls for. an unqualified teacher has a strong obligation to avoid any risky activity (in for example, laboratories, shops, and many physical education activities) regardless of what the regular teacher's lesson plan calls for. E.g. a substitute teacher who cannot swim can have the children read about artificial respiration. E.g. a substitute teacher who cannot swim can have the children read about artificial respiration. A planned practice on the use of power tools can become a classroom lecture on safety with such tools. A planned practice on the use of power tools can become a classroom lecture on safety with such tools. Laboratory experiments should not be attempted in classes where the teacher is not qualified to supervise them. Laboratory experiments should not be attempted in classes where the teacher is not qualified to supervise them.

18. Volunteers Volunteers are sometimes used in school situations to assist teachers in providing supervision, particularly on field trips. Volunteers are sometimes used in school situations to assist teachers in providing supervision, particularly on field trips. In general, volunteers are in the same position regarding negligence as teachers. In general, volunteers are in the same position regarding negligence as teachers. They can be held responsible, but they benefit from the vicarious liability of the school board. They can be held responsible, but they benefit from the vicarious liability of the school board.

19. Outside School Property Outside School Property School boards and teachers are not generally held responsible for accidents occurring off the school grounds except during authorized school activities such as field trips and extracurricular activities during which teachers continue to be responsible for supervising pupils. School boards and teachers are not generally held responsible for accidents occurring off the school grounds except during authorized school activities such as field trips and extracurricular activities during which teachers continue to be responsible for supervising pupils. The board... has no control over property that it does not own or occupy, and therefore cannot be expected to keep it safe. The board... has no control over property that it does not own or occupy, and therefore cannot be expected to keep it safe. Teachers are not expected to supervise children who are both outside the schoolyard and not involved in school activities Teachers are not expected to supervise children who are both outside the schoolyard and not involved in school activities However However Courts have found a duty of care that can be discharged by instructing children in traffic safety as part of the school program. Courts have found a duty of care that can be discharged by instructing children in traffic safety as part of the school program.

20. Outside School Hours Outside School Hours Clearly supervision must be provided when the school is in session and during morning and afternoon recesses when held. Clearly supervision must be provided when the school is in session and during morning and afternoon recesses when held. Teachers must supervise during the lunch break if pupils are permitted to remain at school, Teachers must supervise during the lunch break if pupils are permitted to remain at school, Supervision should also be provided for a period of time before school begins in the morning and perhaps after it ends in the afternoon. Supervision should also be provided for a period of time before school begins in the morning and perhaps after it ends in the afternoon. School authorities must determine the hours during which supervision will be provided and inform parents of these in writing. School authorities must determine the hours during which supervision will be provided and inform parents of these in writing. Parents should be advised not to send their children to school before supervision is available. Parents should be advised not to send their children to school before supervision is available.

21. Gymnastics In avoiding accidents and consequent liability, gymnastics presents very difficult problems for teachers and schools. In avoiding accidents and consequent liability, gymnastics presents very difficult problems for teachers and schools. Cases are common, injuries are serious, and awards are often in the millions of dollars. Gymnastics accidents can result in partial or complete paralysis of a student Cases are common, injuries are serious, and awards are often in the millions of dollars. Gymnastics accidents can result in partial or complete paralysis of a student The standard of care required of gymnastics instructors goes well beyond that of the careful and prudent parent. The standard of care required of gymnastics instructors goes well beyond that of the careful and prudent parent. The use of spotters—the teacher and other students who closely monitor an exercise and apply force to the gymnast to prevent a bad landing or other accident—is crucially important in doing gymnastics safely. The use of spotters—the teacher and other students who closely monitor an exercise and apply force to the gymnast to prevent a bad landing or other accident—is crucially important in doing gymnastics safely.

22. Three cases Three cases clarify the dangers and the standard of care required. Three cases clarify the dangers and the standard of care required. “McKay...” While practising.. on the parallel bars, fell between the bars, landed on his head, and sustained injuries that resulted in permanent paralysis from the neck down. “McKay...” While practising.. on the parallel bars, fell between the bars, landed on his head, and sustained injuries that resulted in permanent paralysis from the neck down.

23. Case #2 “Myers...” teacher [was] in the gymnasium with 40 students, (2 classes combined because of the absence of another teacher) “Myers...” teacher [was] in the gymnasium with 40 students, (2 classes combined because of the absence of another teacher) the plaintiff attempted a straddle dismount,... and fell onto the slab mats below the rings, injuring himself. the plaintiff attempted a straddle dismount,... and fell onto the slab mats below the rings, injuring himself. At trial, the teacher was found to be 80 percent negligent and the plaintiff contributorily negligent by 20 percent. At trial, the teacher was found to be 80 percent negligent and the plaintiff contributorily negligent by 20 percent.

24. Case #3 “Jones...” case - 15-year-old plaintiff was attempting a roll-over on a trampoline when he became untucked and fell to the mat, injuring his neck. “Jones...” case - 15-year-old plaintiff was attempting a roll-over on a trampoline when he became untucked and fell to the mat, injuring his neck. The exercise had been explained and demonstrated by a student teacher and was being spotted by the student teacher and the regular classroom teacher. The exercise had been explained and demonstrated by a student teacher and was being spotted by the student teacher and the regular classroom teacher. The plaintiff had had some previous experience on the trampoline. The plaintiff had had some previous experience on the trampoline. The judge found that the activity was not inherently risky, and that the supervision was adequate. The judge found that the activity was not inherently risky, and that the supervision was adequate. The teachers were not found negligent. The teachers were not found negligent.

25. Conclusions School boards and teachers owe a strong duty of care to pupils under their care. School boards and teachers owe a strong duty of care to pupils under their care. The school premises must be kept as safe as reasonable care and skill can make them, and teachers must supervise pupils in the manner of a careful and prudent parent. The school premises must be kept as safe as reasonable care and skill can make them, and teachers must supervise pupils in the manner of a careful and prudent parent. If the failure to conform to this standard results in injury to a student, the board and teacher can be held liable for the tort of negligence. They may be required to financially compensate the victim for his or her damages. If the failure to conform to this standard results in injury to a student, the board and teacher can be held liable for the tort of negligence. They may be required to financially compensate the victim for his or her damages.

26. Under the principle of vicarious liability, teachers who are guilty of negligence while acting within the scope of their employment will have their share of the award for damages paid by the board or its insurance company. Under the principle of vicarious liability, teachers who are guilty of negligence while acting within the scope of their employment will have their share of the award for damages paid by the board or its insurance company. Schools are normally safe places but certain locations and activities increase risk. Schools are normally safe places but certain locations and activities increase risk. Construction activity on the site of an operating school increases the risk and may result in younger children being lured into the construction zone. Construction activity on the site of an operating school increases the risk and may result in younger children being lured into the construction zone. Within the school itself, shops and laboratories are more dangerous than classrooms. Physical education activities, particularly gymnastics, involve substantially increased risk. Within the school itself, shops and laboratories are more dangerous than classrooms. Physical education activities, particularly gymnastics, involve substantially increased risk.

27. Ignoring student reports of injuries could make a court award against a teacher likely. Ignoring student reports of injuries could make a court award against a teacher likely. limitations and defences... Several provinces have statutes that prevent suits against teachers or impose very strict time-limits for the suits to be filed. Other provinces (NB) require that the school board be allowed to investigate the alleged offence first. limitations and defences... Several provinces have statutes that prevent suits against teachers or impose very strict time-limits for the suits to be filed. Other provinces (NB) require that the school board be allowed to investigate the alleged offence first. In court, teachers who have followed common professional practice will normally not be held liable for negligence. In court, teachers who have followed common professional practice will normally not be held liable for negligence.