9 Feb 2004 More on torts
Application of different tort / liability
situations
9 February
2004
Mention less of Dr Alan Koenig this week at TTU
around 1981 when Fred was an elementary principal in NW Colorado
- had a first grader diagnosed with a brain tumor, had older 4th grade brother, and younger sister who was about to start kindergarten
- removed tumor from his skull about the size of a tennis ball
- after therapy was going to return to school, had missed half to one third of this first grade year
- decision was to have him continue with peers to 2nd grade
- Saturday before Labor Day he passed away
- there are some things we don't really prepare principals to do
-- no one had talked to Fred about what to do in that situation, how do you counsel kids, etc
Tuesday came and about all 40 students in 2nd grade had not known about what happened
- there are things we have to do administratively we may not be prepared for, but we have to do and we are the administrative leader
- the family wanted to have a memorial service for their son
- mother had found a charistmatic faith in the last year
- gym in the school was larger than both churches in town
Fred is principal, supt had been there for 20+ years
- mother wanted service to be conducted by someone from another community, devotional service would be unorthodox / non-traditional (charismatic)
On Thursday did have service
- superintendent asked Fred to make sure nothing unorthodox / out of the ordinary happened
it wasn't really a legal situation, but it could have been
- were needing to walk a fine line between separation of church of state
- felt he needed to say something, but not tell the pastor how to officiate the memorial service
- he understood where Fred was coming from and the situation they were in: more of a community memorial service rather than a traditional church service
Ended up being a very uplifting ceremony
- this is an example of something for which Fred was not prepared or expecting
- it became an all-consuming issue for a time, however
When we get to chapter 5 in A&A and religion, we won't find a case that is specifically on that
- I hope and pray none of you have to go down that path in your professional career
- thankfully this situation worked out well, but it could not have and could have been a more contentions situation...
Back to the course outline
- have 2 different dates for submission of midterm
- it is about a month away
- for clarification purposes: says on page 5 (due Wed Mar 9th by 5 pm)
-- intent is before class that evening
-- while it is fresh on our minds, we'll spend some time that class period talking about the midterm exam
-- does remain due March 9th before class starts
ignore where at tend of course outline it says MARCH 11th (change March 11th to say March 9th)
last week we finished chapter 4 and our disscussion
- we raced through chapters 2 and 3
- got to some cases in chapter 11, esp Kemer and Walsh Ch 10
get the materials posted to WebCT, make sure you have these going into the midterm exam
- definitions
- statutes: public documents right out of TX education code
- definitions of statutory immunity from Ch 22 of Texas Education code ***
Now, with that in mind, here are 2 scenarios (we will keep throwing curve balls)
- we are all on the same team
Let's go through, if this was presented to you in an exam, how you would analyze a possible tort situation
2- in round 2, we will have some people playing judges and attorneys
1st situation: more than 30 years ago when Fred was a 5th garde teacher
- Ann, Ben, and Carol (A, B and C)
- Fred is the teacher
- this is all hypothetical
- Fred is in his classroom, Ann who is in her seat in 3rd row, takes pencil from her desk and tosses it to Ben who is 10' away
- Castle Rock Elementary in Colorado
- pencil had been recently sharpened, could be a potential weapon
-- under definition of negligence, is there a foreseeable risk of harm? (failure to do what others would do under similar circumstances)
- thinking broadly, who might be negligent at this time (not foreseeing the possible risk of harm?)
- it is very conservative to think that there is no foreseeable risk of harm: either for the student who might be throwing the pencil, or for the teacher who might not have expected the pencil to be thrown
Can a 10 year old be negligent?
- we read somewhere about children not being liable, the parent being held liable until a certain age
asking "is the child negligent" is different from asking "is the child liable"
p 559 of A&A says children age 7-14 are presumed not to be negligent unless proven otherwise (prima facia case for incapacity)
-- inability to have intent, to have the thought process to "know what they are doing"
- what jurisdiction is this from?
- remember tort law is state specific and can have 50 different variations
- question is, is this broadly interpretable, is this a rule of thumb we can rely on, or something we need to know more about it
- do we know anything affirmatively from Kemerer and Walsh about a comparable Texas provision
Bottom line on this: do we have 1 or more people who will be negligent in this?
- let's hold of on discussing possible defenses, of which immunity would be an affirmative defense
don't read too much into these cases, or jump ahead too fast without going through required initial steps
Kemer and Walsh page 68: TX Family code defines a child between 10 and 17, can be tried under the juvenile justice system
- 18 and over, considered an adult
- family code points out 12-18 if vandalism was willful and malicious
-- both of these points apply to possible CRIMINAL behavior
remember civil behavior is different than criminal behavior
- are different kinds of statutory definitions of "child"
- Fred is not sure in Texas whether a child in Texas can be held as negligent
Based on what we know we don't know: is it OK to say we have to gather more information
- yes, that is appropriate at this point in this case
- we don't have enough facts yet ...
would this make a difference if Ann regularly throws pencils?
more info now: Ann threw the pencil because Ben asked her to
- does that change anything?
- the facts and how these details combine may have a lot to do with the eventual analysis
- one of Fred's challenges in writing scenarios is to write them "real-world": so there is some info you have, and some you do not
questions
- do we have an injury / a harm?
now let's add in, pencil flew across the room and hit Ben in the eye, and injures him
- doesn't lose sight in his eye, has a modest injury
- how does this change our analysis?
refer to last week's 4 part negligence test!
1- start with: a duty (be thinking first who the potential defendants might be)
-- who owe's Ben a duty (Ben would have to show that both defendant's owed him a duty
--- duty of safety, duty to supervise, etc. (arguably the teacher owes a duty to all students,
-- does Ann one Ben a duty to act reasonably (arguable yes)
2- did someone breach a duty?
-- what kinds of questions would you want to ask to find out more information?
--- wwhat wwas the teacher doing, where was Fred in the room, etc.
--- was it the first day of school, was Ann a new student
--- you are investigating the situation
-- is this a repeated offense
- we don't know enough facts yet to be able to determine if the duty was breached
things that are not Texas cases may not carry as much weight as a Texas case
- a case can work for you or against you
3- is there a proximate causation?
-- was the conduct in breaching the duty connected to the injury that was sustained
-- given everything that is shown, could Ben prove all 4 of these
not an expectation that a teacher guarantees the safety of every student at all times (that would require a 1:1 teacher to student ratio)
if teacher turns his/her back to the class for awhile, have they breached their duty to the children?
- has the teacher abandoned his/her supervisory duty at that point?
-- get as many factual, circumstantical facts as you can about the situation
have read cases where teachers were not found negligent, because they were engaged in other aspects of their job, doing their best
if a plaintiff can make a prima facia case for negligence, then someone could recover
Go through all 4 of these steps when you get a negligence / tort situation on the midterm or final!
- there will always be more questions to ask than you know the answers to
do you know if Fred is negligent?
- if all 4 parts are shown, you have a prima facia showing of negligence
- then burden shifts to defendant to come up with affirmative defenses: I have immunity, or another affirmative defense
Cut to the chance, affirmative defenses:
1- immunity (discussed a lot by Kemerer and Walsh), statutory immunity in Texas Education Code is huge
-- are other affirmative defenses
From A&A, also need to know about:
p. 571 of A&A, defenses to negligence is
1- contributory negligence is an older tort based doctrine, goes back 400-500 years in England
-- if plaintiff in negligence contributed in any part to their own injury, they recover 0%
--- even if you contributed even a little bit
(under the old doctrine of contributory negligence, if Ben had asked Ann to throw him a pencil, then Ben would have contributed and he would recover NOTHING even if he had shown negligence)
now doctrine of contributory negligence has lost virtually all its momentum
Now on p 571 we have the law of contributory negligence
- if you have a plaintiff who shows all 4 prongs of neglience, the burden shifts to the defendant, they have the ability to shift question to contribution to the damage
- what percentage of Ben's injury was his responsiblity versus the teacher's responsibility to supervise, or Ann's responsiblity to act safely
- this would be a question for the jury
If Ben contributed to his injury, asked for the pencil, it would be a jury's responsilibility TO APPORTION THE PERCENTAGE OF FAULT among the plaintiff, Ben, and the defendant or defendants (Fred the teacher and Ann the classmate)
Jury could then conclude Ben contributed 10 percent, 25 percent, 50 percent, or whatever
- as long as the plaintiff does not contribute over 50% to their injury, then s/he can recover the percent to which s/he did not contribute
-- if it was 25% contribution by Ben, then he could recover 75% of his damages
this is a fairer legal doctrine than contributory negligence doctrine was
- if it is more than 50%, Ben get's nothing
- if it is less than that, you can recover at least half
Law in Texas (general law), it is contributory negligence
those are 2 affirmative devenses
bottom pf p571
ASSUMPTION OF RISK- another affirmative defense
- in Texas and other jurisiction, assumption of risk probably wouldn't extend to this situation like getting a pencil thrown
-- this applies more to a situation where someone goes out for competitive athletics, they take on that risk (assumption of risk)
- on part of defendants, assumption of risk can be an acceptable postive defense
assumption of risk may not carry weight if other facts are different
also look on p 572
- do we have personal liability attaching?
Definition of professional employee in Texas: "Supt, principal, teacher, sub, etc..."
- bus drivers are included in Texas
- all are professional educators if their job involves exercise of discretion
- custodians and cafeteria workers are not included
- volunteers are covered in another statutory provision
now go back to statutory immunity
- now we know what a professional employee
- wording says, "a professional employee is NOT PERSONALLY LIABLITY" as long as you are acting in the scope of your employment AND (this is different from A&A that uses word "or") have to be doing something that involves the exercise of discretion or judgement
- exception #1 involves discipline: exessively or negligently resulting in bodily injury (not just limited to physical, outward injury)
- exception #2: no immunity from personal liability of the injury results from the operation, use or maintenance of any motor vehicle (that is one reason not to drive students' home from school in your car or another vehicle)
latter part of this definition was added in 2003 as a result of NCLB (Coverdell legislation)
- US code provides some statutory immunity
- this doesn't really add much for Texas educators
we had about 8 more variables
- what if they are 5 or 6 year olds, or 15-18 year olds? Is that a factor
- does it matter if Ben asks for the pencil?
- what if the pencil hits Carol?
- what if Carol was running around out of her seat, or tried to jump up and catch the pencil? (how does this relate to Carol's contribution to this situation)
- ALWAYS ATTEMPT (even if you don't have all the facts) to go through all 4 parts of the test of prima facia negligence
you don't get to immuniity until you get to a prima facia finding of negligence
most plaintiff attorney's get 30, 40 or 50% of the damages
NEXT PHASE
- here are facts of an actual case
-- Mary Doe, 17 year old EDSP student who functions at level of 6=8 year old was sexually assaulted at school on Jan 6th
-- within a day, several school officials are made aware of the sexual assault
-- sexual assault occured in unlocked school elevator during school hours
-- involved her special education classmate (Mad Dog)
-- special ed diagnostican in charge of disciplining special ed students, has known mary for 11 years, talked to Mary about it the day following
-- Mary informed her that the sexual encounter was not consensual, but Diagnostican concluded after talking to Mary that it was consensual
- Diagnostician tells her adminstrators and the parent that it was consensual
- Mary's mother disagrees that it was consensual, but reluctantly agrees with diagnostician that Mary should be disciplined
- diagnostician with concurrance of her administrators, talks with both Mary and Mad Dog one time to reprimand them
- diagnostician admits she knew Mary did not have very good reasoning skills and that she needs repetitive instructions to follow them (but even given this, she just talked to her once)
- vice principal and diagnostitican come up with new policies (instructs everyone around these students not to leave them alone together, instructs teachers around the elevator, have these students accompanied and watched by an escort, that door of elevator is locked at all times, that only adults would have access to elevator keys)
-- mandatory tardy policy for both students
those were done around Jan 7, by jan 27 there had been 2 more incidents with Mary and Mad Dog engaging in sexual relations in the unlocked elevator
that about summarizes this REAL case
for plaintiff's council: what type of claim might you bring and against whom might you bring it?
- type of case to bring:
at this point the videotape of class I was watching ended....
Mention less of Dr Alan Koenig this week at TTU
around 1981 when Fred was an elementary principal in NW Colorado
- had a first grader diagnosed with a brain tumor, had older 4th grade brother, and younger sister who was about to start kindergarten
- removed tumor from his skull about the size of a tennis ball
- after therapy was going to return to school, had missed half to one third of this first grade year
- decision was to have him continue with peers to 2nd grade
- Saturday before Labor Day he passed away
- there are some things we don't really prepare principals to do
-- no one had talked to Fred about what to do in that situation, how do you counsel kids, etc
Tuesday came and about all 40 students in 2nd grade had not known about what happened
- there are things we have to do administratively we may not be prepared for, but we have to do and we are the administrative leader
- the family wanted to have a memorial service for their son
- mother had found a charistmatic faith in the last year
- gym in the school was larger than both churches in town
Fred is principal, supt had been there for 20+ years
- mother wanted service to be conducted by someone from another community, devotional service would be unorthodox / non-traditional (charismatic)
On Thursday did have service
- superintendent asked Fred to make sure nothing unorthodox / out of the ordinary happened
it wasn't really a legal situation, but it could have been
- were needing to walk a fine line between separation of church of state
- felt he needed to say something, but not tell the pastor how to officiate the memorial service
- he understood where Fred was coming from and the situation they were in: more of a community memorial service rather than a traditional church service
Ended up being a very uplifting ceremony
- this is an example of something for which Fred was not prepared or expecting
- it became an all-consuming issue for a time, however
When we get to chapter 5 in A&A and religion, we won't find a case that is specifically on that
- I hope and pray none of you have to go down that path in your professional career
- thankfully this situation worked out well, but it could not have and could have been a more contentions situation...
Back to the course outline
- have 2 different dates for submission of midterm
- it is about a month away
- for clarification purposes: says on page 5 (due Wed Mar 9th by 5 pm)
-- intent is before class that evening
-- while it is fresh on our minds, we'll spend some time that class period talking about the midterm exam
-- does remain due March 9th before class starts
ignore where at tend of course outline it says MARCH 11th (change March 11th to say March 9th)
last week we finished chapter 4 and our disscussion
- we raced through chapters 2 and 3
- got to some cases in chapter 11, esp Kemer and Walsh Ch 10
get the materials posted to WebCT, make sure you have these going into the midterm exam
- definitions
- statutes: public documents right out of TX education code
- definitions of statutory immunity from Ch 22 of Texas Education code ***
Now, with that in mind, here are 2 scenarios (we will keep throwing curve balls)
- we are all on the same team
Let's go through, if this was presented to you in an exam, how you would analyze a possible tort situation
2- in round 2, we will have some people playing judges and attorneys
1st situation: more than 30 years ago when Fred was a 5th garde teacher
- Ann, Ben, and Carol (A, B and C)
- Fred is the teacher
- this is all hypothetical
- Fred is in his classroom, Ann who is in her seat in 3rd row, takes pencil from her desk and tosses it to Ben who is 10' away
- Castle Rock Elementary in Colorado
- pencil had been recently sharpened, could be a potential weapon
-- under definition of negligence, is there a foreseeable risk of harm? (failure to do what others would do under similar circumstances)
- thinking broadly, who might be negligent at this time (not foreseeing the possible risk of harm?)
- it is very conservative to think that there is no foreseeable risk of harm: either for the student who might be throwing the pencil, or for the teacher who might not have expected the pencil to be thrown
Can a 10 year old be negligent?
- we read somewhere about children not being liable, the parent being held liable until a certain age
asking "is the child negligent" is different from asking "is the child liable"
p 559 of A&A says children age 7-14 are presumed not to be negligent unless proven otherwise (prima facia case for incapacity)
-- inability to have intent, to have the thought process to "know what they are doing"
- what jurisdiction is this from?
- remember tort law is state specific and can have 50 different variations
- question is, is this broadly interpretable, is this a rule of thumb we can rely on, or something we need to know more about it
- do we know anything affirmatively from Kemerer and Walsh about a comparable Texas provision
Bottom line on this: do we have 1 or more people who will be negligent in this?
- let's hold of on discussing possible defenses, of which immunity would be an affirmative defense
don't read too much into these cases, or jump ahead too fast without going through required initial steps
Kemer and Walsh page 68: TX Family code defines a child between 10 and 17, can be tried under the juvenile justice system
- 18 and over, considered an adult
- family code points out 12-18 if vandalism was willful and malicious
-- both of these points apply to possible CRIMINAL behavior
remember civil behavior is different than criminal behavior
- are different kinds of statutory definitions of "child"
- Fred is not sure in Texas whether a child in Texas can be held as negligent
Based on what we know we don't know: is it OK to say we have to gather more information
- yes, that is appropriate at this point in this case
- we don't have enough facts yet ...
would this make a difference if Ann regularly throws pencils?
more info now: Ann threw the pencil because Ben asked her to
- does that change anything?
- the facts and how these details combine may have a lot to do with the eventual analysis
- one of Fred's challenges in writing scenarios is to write them "real-world": so there is some info you have, and some you do not
questions
- do we have an injury / a harm?
now let's add in, pencil flew across the room and hit Ben in the eye, and injures him
- doesn't lose sight in his eye, has a modest injury
- how does this change our analysis?
refer to last week's 4 part negligence test!
1- start with: a duty (be thinking first who the potential defendants might be)
-- who owe's Ben a duty (Ben would have to show that both defendant's owed him a duty
--- duty of safety, duty to supervise, etc. (arguably the teacher owes a duty to all students,
-- does Ann one Ben a duty to act reasonably (arguable yes)
2- did someone breach a duty?
-- what kinds of questions would you want to ask to find out more information?
--- wwhat wwas the teacher doing, where was Fred in the room, etc.
--- was it the first day of school, was Ann a new student
--- you are investigating the situation
-- is this a repeated offense
- we don't know enough facts yet to be able to determine if the duty was breached
things that are not Texas cases may not carry as much weight as a Texas case
- a case can work for you or against you
3- is there a proximate causation?
-- was the conduct in breaching the duty connected to the injury that was sustained
-- given everything that is shown, could Ben prove all 4 of these
not an expectation that a teacher guarantees the safety of every student at all times (that would require a 1:1 teacher to student ratio)
if teacher turns his/her back to the class for awhile, have they breached their duty to the children?
- has the teacher abandoned his/her supervisory duty at that point?
-- get as many factual, circumstantical facts as you can about the situation
have read cases where teachers were not found negligent, because they were engaged in other aspects of their job, doing their best
if a plaintiff can make a prima facia case for negligence, then someone could recover
Go through all 4 of these steps when you get a negligence / tort situation on the midterm or final!
- there will always be more questions to ask than you know the answers to
do you know if Fred is negligent?
- if all 4 parts are shown, you have a prima facia showing of negligence
- then burden shifts to defendant to come up with affirmative defenses: I have immunity, or another affirmative defense
Cut to the chance, affirmative defenses:
1- immunity (discussed a lot by Kemerer and Walsh), statutory immunity in Texas Education Code is huge
-- are other affirmative defenses
From A&A, also need to know about:
p. 571 of A&A, defenses to negligence is
1- contributory negligence is an older tort based doctrine, goes back 400-500 years in England
-- if plaintiff in negligence contributed in any part to their own injury, they recover 0%
--- even if you contributed even a little bit
(under the old doctrine of contributory negligence, if Ben had asked Ann to throw him a pencil, then Ben would have contributed and he would recover NOTHING even if he had shown negligence)
now doctrine of contributory negligence has lost virtually all its momentum
Now on p 571 we have the law of contributory negligence
- if you have a plaintiff who shows all 4 prongs of neglience, the burden shifts to the defendant, they have the ability to shift question to contribution to the damage
- what percentage of Ben's injury was his responsiblity versus the teacher's responsibility to supervise, or Ann's responsiblity to act safely
- this would be a question for the jury
If Ben contributed to his injury, asked for the pencil, it would be a jury's responsilibility TO APPORTION THE PERCENTAGE OF FAULT among the plaintiff, Ben, and the defendant or defendants (Fred the teacher and Ann the classmate)
Jury could then conclude Ben contributed 10 percent, 25 percent, 50 percent, or whatever
- as long as the plaintiff does not contribute over 50% to their injury, then s/he can recover the percent to which s/he did not contribute
-- if it was 25% contribution by Ben, then he could recover 75% of his damages
this is a fairer legal doctrine than contributory negligence doctrine was
- if it is more than 50%, Ben get's nothing
- if it is less than that, you can recover at least half
Law in Texas (general law), it is contributory negligence
those are 2 affirmative devenses
bottom pf p571
ASSUMPTION OF RISK- another affirmative defense
- in Texas and other jurisiction, assumption of risk probably wouldn't extend to this situation like getting a pencil thrown
-- this applies more to a situation where someone goes out for competitive athletics, they take on that risk (assumption of risk)
- on part of defendants, assumption of risk can be an acceptable postive defense
assumption of risk may not carry weight if other facts are different
also look on p 572
- do we have personal liability attaching?
Definition of professional employee in Texas: "Supt, principal, teacher, sub, etc..."
- bus drivers are included in Texas
- all are professional educators if their job involves exercise of discretion
- custodians and cafeteria workers are not included
- volunteers are covered in another statutory provision
now go back to statutory immunity
- now we know what a professional employee
- wording says, "a professional employee is NOT PERSONALLY LIABLITY" as long as you are acting in the scope of your employment AND (this is different from A&A that uses word "or") have to be doing something that involves the exercise of discretion or judgement
- exception #1 involves discipline: exessively or negligently resulting in bodily injury (not just limited to physical, outward injury)
- exception #2: no immunity from personal liability of the injury results from the operation, use or maintenance of any motor vehicle (that is one reason not to drive students' home from school in your car or another vehicle)
latter part of this definition was added in 2003 as a result of NCLB (Coverdell legislation)
- US code provides some statutory immunity
- this doesn't really add much for Texas educators
we had about 8 more variables
- what if they are 5 or 6 year olds, or 15-18 year olds? Is that a factor
- does it matter if Ben asks for the pencil?
- what if the pencil hits Carol?
- what if Carol was running around out of her seat, or tried to jump up and catch the pencil? (how does this relate to Carol's contribution to this situation)
- ALWAYS ATTEMPT (even if you don't have all the facts) to go through all 4 parts of the test of prima facia negligence
you don't get to immuniity until you get to a prima facia finding of negligence
most plaintiff attorney's get 30, 40 or 50% of the damages
NEXT PHASE
- here are facts of an actual case
-- Mary Doe, 17 year old EDSP student who functions at level of 6=8 year old was sexually assaulted at school on Jan 6th
-- within a day, several school officials are made aware of the sexual assault
-- sexual assault occured in unlocked school elevator during school hours
-- involved her special education classmate (Mad Dog)
-- special ed diagnostican in charge of disciplining special ed students, has known mary for 11 years, talked to Mary about it the day following
-- Mary informed her that the sexual encounter was not consensual, but Diagnostican concluded after talking to Mary that it was consensual
- Diagnostician tells her adminstrators and the parent that it was consensual
- Mary's mother disagrees that it was consensual, but reluctantly agrees with diagnostician that Mary should be disciplined
- diagnostician with concurrance of her administrators, talks with both Mary and Mad Dog one time to reprimand them
- diagnostician admits she knew Mary did not have very good reasoning skills and that she needs repetitive instructions to follow them (but even given this, she just talked to her once)
- vice principal and diagnostitican come up with new policies (instructs everyone around these students not to leave them alone together, instructs teachers around the elevator, have these students accompanied and watched by an escort, that door of elevator is locked at all times, that only adults would have access to elevator keys)
-- mandatory tardy policy for both students
those were done around Jan 7, by jan 27 there had been 2 more incidents with Mary and Mad Dog engaging in sexual relations in the unlocked elevator
that about summarizes this REAL case
for plaintiff's council: what type of claim might you bring and against whom might you bring it?
- type of case to bring:
at this point the videotape of class I was watching ended....
Posted: Wed - February 16, 2005 at 08:38 PM |
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