The Claire Davis Safety Act What does it mean for Charters?

Legislative Background Very emotional process League involved intimately throughout fighting for substantial revisions Able to extract some meaningful concessions but bill did ultimately pass into law League continuing to monitor/engage very closely

In A Nutshell

Introduction Foundational Concept: If someone’s actions (or even inaction) cause injury to another, the injured party can file a lawsuit, prove his or her case, and recover damages from the offending party. Schools and their employees have some immunity, as public entities, from this basic concept. The CDSA is about changing the rules for immunity and when it will and will not be granted to schools.

Introduction Before the passage of the CDSA a school had immunity unless the action that caused the injury was “willful and wanton.” This means that an injured party could only recover in a lawsuit if they could prove that the school intentionally caused the injury. “We wanted you to get hurt.” This is hard to prove, and this is why successful lawsuits against a school are rare.

What Does the CDSA Do? Charter schools are explicitly covered by the new CDSA. The CDSA changes the standard of care for receiving immunity to require “reasonable care to protect all students, faculty, and staff from harm from acts committed by another person when the harm is reasonably foreseeable” for incidents of school violence. No intent to cause injury is required in order to lose immunity, just a lack of exercising “reasonable care.” This is a significantly lower standard than “willful and wanton.”

What does the CDSA do? This new standard of care does not apply to every potential tort claim. It only applies to an “incidence of school violence” at school or a school sponsored event. “School violence” is defined as when a person commits, conspires to commit, or attempts to commit murder, first degree assault, or felony sexual assault AND it causes death or serious bodily injury, which is defined as a substantial risk of death, permanent disfigurement, or loss or impairment of any bodily function.

What does the CDSA do? Employees, in their individual capacities, are still held to the old standard – they are immune unless the conduct is “willful and wanton.” However, an employee found to not meet the new standard will still expose the school to liability (under Respondeat Superiore an employees conduct is imputed to employer). Therefore schools are still responsible for ensuring that employees are meeting the new standard of care.

What does this mean to my school? When an incident of school violence occurs, the questions will be asked, “Was this reasonably foreseeable?” and “Was there something reasonable that the school or an employee could have done to prevent this?” If the answer is “yes,” your school can be successfully sued for what will likely be a substantial sum of money. If the answer is unclear, which will be the case in almost all situations, you can still be subjected to costly litigation that will likely be more efficient to settle before trial for a substantial sum of money.

What does this mean to my school? What will you do to prevent “reasonably foreseeable” incidence of violence to avoid lawsuits? ◦How will you respond to a student who threatens violence? ◦How will you respond when two students get into a fist fight? ◦How will you respond if a student brings a weapon to school? ◦At what point will you involve law enforcement with a student or a situation? ◦How many security officers will you hire? ◦This list could go on…

What does this mean to my school? Allowing “vigorous discover” of all the information surrounding the incident of violence to determine what the school knew and when, and how the school responded, is another big component of this new law. This will allow: ◦Discovery of previously confidential documents via court order. ◦Opposing party can conduct depositions, interrogatories, etc.

What does this mean to my school? Anticipated costs: ◦Increased insurance premiums ◦Increased security ◦Increased attorney costs to review situations and decisions (i.e. should we suspend this student?) -We promise we didn’t lobby for this! ◦Potential settlement or litigation costs

What does this mean for my school? Good News!....for now…. Due to the work of the CLCS, a two-year “timeout” before courts are authorized to award damages for claims under the CDSA was added. So, we have two years to prepare. The law might be amended or repealed before, but if not then this will go into effect in two years.

Conclusion Questions?