2 February 2005: liability and torts
Main focus on liability issues and
torts
EDLD
5340
2 Feb 2005
Ch 10 in Kemer and Walsh on Legal Liability: number of references to Doe vs Taylor ISD
- Mr Kaplinger's story is an interesting one
Looking at Supplementary Materials
- Nov 1994 article from Texas Monthly: The Seduction of Jane Doe
-- this is not the judicial opinion!
purpose in having us do principal interviews was:
- get us engaged
Last week:
- finished chapter 1
- are going to now go back briefly to ch 2 and 3
- Hortonville is a real big case for us to remember
-- Due process
-- quasi-judicial functioning by a school district
-- review: Wisconsin teachers went on strike, attorney for their union made assumption that the district was biased, Wisconsion supreme court agreed but the US Supreme Court disagreed and reversed
- next important case: Aldridge
-- key idea: open meetings rules
Tonight we will focus on liability and torts
term when the board in Lubbock Cooper met but didn't serve proper notice to hire a new superintendnet: VOID
- requires that someone raise the issue in a timely manner
- when something is declared void, the entity has to go back and start over
Board Presidents and Boards do run the risk if they knowingly violate the law, they can be held criminally liable (mistameanor)
- can result in fines or board times
in executive session (when justified) the board can discuss, but they CANNOT take action
- can have deliberations, but not the vote taken
Texas has a more constrained approach toward the concept of "straw votes" for school boards compared to other states, including Pennyslvania
once superintendent is in place, the board will rely on him/her to address many legalities (including setting agendas, posting notice, etc)
Most recent voidable case with TTU involves lawsuits coming out of termination of Bob Knight at Indiana
- only pending case concerns Indiana Univ and open meetings: primary allegation brought against Indiana Board of Regents by fans and supporters of Knight is that the Board met illegally in violation of the Indiana open meetings
see pages 300-301 for Kemerer and Walsh
- Cox Enterprises case is about Rod Paige, Houston Superintendent who was US Secretary of Education during President George W. Bush's first term
enough on open meetings, now turn to A&A on page 143
Hovet Case:
- Hovet was a teacher, she is a plantiff wanting damages and an injunction
temporary restraining orders in Texas typically run about 10 days
- permanent injunction lasts to perpetuity or till conditions change
School district did a flip flop here and ends up siding with Hovet
operable concept here: OPEN RECORDS (with some exceptions)
- key conclusion: in North Dakota, teacher personnel records are open governmental records and accessible for inspection
in contrast, student records are CLOSED
- FERPA and Buckley amendment protect us as graduate students, just as they protect kindergarteners
Look at case notes for the Hovet case, part 3, references Klein ISD v Mattox (that was a 1987 case ruling that the teacher's college transcript was NOT protected from open records status / open scruitiny)
challenge for us: can anyone look at a teacher's performance evaluations (that can be different than their entire personnel file)
p. 303: in Texas, SSN, family members, home address, etc are private by default, you must OPT IN to make it public
- it is no longer an accurate depiction of what we have in Texas
- refer to p 303 of Kemer and Walsh, bottom of page
Look in supplemental materials, chapter 552
Note that superintendents are the legal record custodians in the district
We will save the Smith case for later....
Now we get the 1 min chapter 2 and chapter 3 from A&A
- we are laying the foundation
chapter 2 case on Claremont in NH: dealing with funding
- courts said education was a fundamental right, the schools were not adequately funding
- compare this to Edgewood 1, 2 and 3 in Texas
- finally with Edgewood 4 they said it was consitutional (in 1995) but now Coke case on appeal to the
- lots of findings of fact that will be hard for TX Supreme Court to overturn
see San Antonio ISD v Rodriguez p 88
- supreme court says education is a state responsiblity, not a federal right
- p 69 analysis on general welfare clause: how the federal government
probably very difficult for a district to turn down federal special ed money and then opt out of IDEA requirements
- could possibly do that and opt out of NCLB
commerce clause viability now with Republican governed court is low, 10 years ago it was very viable
Midterm or Final exam may not have specific questions for chapters 2 or 3, unless we build on those
Good news in Texas: state protections for professional educators are as extensive (for personal liability from a state law claim) in Texas than they are anywhere else in the US
- really are just 2 exceptions
under federal law claims, however, this same state law immunity does not exist to the same extent (Kemerer and Walsh p 352)
most of interest in liability in this course will be with NEGLIGENCE
- A&A page 556
intentional torts are different / separate from negligence
- battery is a physical touching
- assult can be just a threat (does not have to actually involve touching)
DEFINITIONS (these will be made available also via WebCT)
Negligence: conduct in which a person fails to exerciese reasonable care to protect another from the foreseeable risk of harm, or failure to do what others would do under similar circumstances
- we owe everyone the expecation of reasonable behavior
- last concept in Chapter 11: educational malpractice
Foreseeability is an important key
- example: elementary teacher takes kids out on the playground, clear day with no clouds, lightning strikes and kills a child
negligence is one type of tort
TORT: a legal wrong or injury to a person or property which does not involve breach of contract and for which a civil (as opposed to a criminal) suit can be brought for the recovery of damages -- premised on the legal theory that people are liable for the consequences of their actions that result in injury to others
if something is REALLY an accident, you are not going to have tort liability
- an automobile wreck caused by a negligent driver WOULD involve torts
if we violate these duties that are resonable, then we are expected to PAY for our liability
- defamation, slander, and libel are types of torts
Four-Part test for negligence (inherited from 400 year old English common law)
The only way to determine if there was negligence is to go through this four part test
- plaintiff must show ALL FOUR to have a negligence case
1- DUTY OWED BY SOMEONE TO SOMEONE ELSE: did the defendant owe the plaintiff a duty of care?
-- for teachers, these could include duty of safety (duty to warn, provide safe equipment, provide safe environment, supervise in the classroom, supervise on a fieldtrip, there are LOTS of these)
2- BREACH OF DUTY: did the defendant breach the duty owed to the plaintiff? If no breach of duty, there is not a finding of negligence
3- PROXIMATE CAUSE: was the defendant's conduct in breaching the duty of care the proximate cause of the plaintiff's injury
-- means if there is some connection between what the defendant did or did not do (act of omission or comission) then proximate cause exists
4- INJURY: did the plaintiff suffer an actual injury for which s/he is entitled to recover
-- can hurt feelings equate to a finding such that a court in Texas will say "you can recover damages"? No.
- injury can be emotional distress, pain and suffering-- NOT hurt feelings
- can be loss of consortium (parents claimed they lost their relationship with their child): Spears case
compensable, colorable causes for which you can recover if you can show all 4 of these parts of the negligence test
IF DR HARTMEISTER IN AN EXAM ASKS: PROVIDE AN ANALYSIS OF WHETHER OR NOT THERE WAS NEGLIGENCE, WE MUST GO THROUGH ALL 4 STEPS IN LIGHT OF CHAPTER 11 A&A AND KEMERER AND WALSH CHAPTER 10.
- also need to be able to analyze if there are appropriate / fitting defenses (immunity could be one)
- everything we are talking about here concerns STATE law
the balance that the Texas legislature has struck between educator immunity and plaintiff rights has not been changed/addressed by the Texas courts
SEE TEC 22.0511 (added in 2003) - IMMUNITY FROM LIABILITY (a) A professional employee of a school district (public) is not personally liable for any act that is incident to or within the scope of the duties of the employee's position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.
Keys:
1- are you in the scope of your employee duties? (Scope of Employment)
2- are you exerciseing judgement or discretion (from TX Sup Ct, almost everything the teacher does fits in here)
- in 2003 they extended this a little bit to private schools
FACTS AND CIRCUMSTANCES ARE GOING TO DRIVE EVERY ONE OF THE SCENARIOS WE ARE ASKED TO ANALYZE
In 2003 the legislature just renumbered the "Immunity From Liability" statute, they have not changed the wording in 30 years
- this was NOT written to say, if you are negligent you are guilty
- the TX Supreme Court has interpreted it to say "discipline must be involved, negligent use of force must be involved"
-- not just corporal punishment, can be non-physical examples of punishment
The jury will (if the case is heard) ultimately decide what is "excessive"
Having insurance is always good, but it won't change the liability finding
assumption of risk is covered in A&A
- good luck on that if it is a mandatory activity like required PE
B) SECOND EXEPTION: THIS SECTION DOES NOT APPLY TO THE OPERATION, USE, OR MAINTENANCE OF ANY MOTOR VEHICLE;
C) IN ADDITION TO THE IMMUNITY PROVIDED UNDER THIS SECTION AND UNDER OTHER PROVISIONS OF STATE LAW, AN INDIVIDUAL IS ENTITLED TO ANY IMMUNITY AND ANY OTHER PROTECTIONS AFFORDED UNDER THE....
next week, we'll review what defines "professional educator employed by the district"
we will get to chapter 12 next week
2 Feb 2005
Ch 10 in Kemer and Walsh on Legal Liability: number of references to Doe vs Taylor ISD
- Mr Kaplinger's story is an interesting one
Looking at Supplementary Materials
- Nov 1994 article from Texas Monthly: The Seduction of Jane Doe
-- this is not the judicial opinion!
purpose in having us do principal interviews was:
- get us engaged
Last week:
- finished chapter 1
- are going to now go back briefly to ch 2 and 3
- Hortonville is a real big case for us to remember
-- Due process
-- quasi-judicial functioning by a school district
-- review: Wisconsin teachers went on strike, attorney for their union made assumption that the district was biased, Wisconsion supreme court agreed but the US Supreme Court disagreed and reversed
- next important case: Aldridge
-- key idea: open meetings rules
Tonight we will focus on liability and torts
term when the board in Lubbock Cooper met but didn't serve proper notice to hire a new superintendnet: VOID
- requires that someone raise the issue in a timely manner
- when something is declared void, the entity has to go back and start over
Board Presidents and Boards do run the risk if they knowingly violate the law, they can be held criminally liable (mistameanor)
- can result in fines or board times
in executive session (when justified) the board can discuss, but they CANNOT take action
- can have deliberations, but not the vote taken
Texas has a more constrained approach toward the concept of "straw votes" for school boards compared to other states, including Pennyslvania
once superintendent is in place, the board will rely on him/her to address many legalities (including setting agendas, posting notice, etc)
Most recent voidable case with TTU involves lawsuits coming out of termination of Bob Knight at Indiana
- only pending case concerns Indiana Univ and open meetings: primary allegation brought against Indiana Board of Regents by fans and supporters of Knight is that the Board met illegally in violation of the Indiana open meetings
see pages 300-301 for Kemerer and Walsh
- Cox Enterprises case is about Rod Paige, Houston Superintendent who was US Secretary of Education during President George W. Bush's first term
enough on open meetings, now turn to A&A on page 143
Hovet Case:
- Hovet was a teacher, she is a plantiff wanting damages and an injunction
temporary restraining orders in Texas typically run about 10 days
- permanent injunction lasts to perpetuity or till conditions change
School district did a flip flop here and ends up siding with Hovet
operable concept here: OPEN RECORDS (with some exceptions)
- key conclusion: in North Dakota, teacher personnel records are open governmental records and accessible for inspection
in contrast, student records are CLOSED
- FERPA and Buckley amendment protect us as graduate students, just as they protect kindergarteners
Look at case notes for the Hovet case, part 3, references Klein ISD v Mattox (that was a 1987 case ruling that the teacher's college transcript was NOT protected from open records status / open scruitiny)
challenge for us: can anyone look at a teacher's performance evaluations (that can be different than their entire personnel file)
p. 303: in Texas, SSN, family members, home address, etc are private by default, you must OPT IN to make it public
- it is no longer an accurate depiction of what we have in Texas
- refer to p 303 of Kemer and Walsh, bottom of page
Look in supplemental materials, chapter 552
Note that superintendents are the legal record custodians in the district
We will save the Smith case for later....
Now we get the 1 min chapter 2 and chapter 3 from A&A
- we are laying the foundation
chapter 2 case on Claremont in NH: dealing with funding
- courts said education was a fundamental right, the schools were not adequately funding
- compare this to Edgewood 1, 2 and 3 in Texas
- finally with Edgewood 4 they said it was consitutional (in 1995) but now Coke case on appeal to the
- lots of findings of fact that will be hard for TX Supreme Court to overturn
see San Antonio ISD v Rodriguez p 88
- supreme court says education is a state responsiblity, not a federal right
- p 69 analysis on general welfare clause: how the federal government
probably very difficult for a district to turn down federal special ed money and then opt out of IDEA requirements
- could possibly do that and opt out of NCLB
commerce clause viability now with Republican governed court is low, 10 years ago it was very viable
Midterm or Final exam may not have specific questions for chapters 2 or 3, unless we build on those
Good news in Texas: state protections for professional educators are as extensive (for personal liability from a state law claim) in Texas than they are anywhere else in the US
- really are just 2 exceptions
under federal law claims, however, this same state law immunity does not exist to the same extent (Kemerer and Walsh p 352)
most of interest in liability in this course will be with NEGLIGENCE
- A&A page 556
intentional torts are different / separate from negligence
- battery is a physical touching
- assult can be just a threat (does not have to actually involve touching)
DEFINITIONS (these will be made available also via WebCT)
Negligence: conduct in which a person fails to exerciese reasonable care to protect another from the foreseeable risk of harm, or failure to do what others would do under similar circumstances
- we owe everyone the expecation of reasonable behavior
- last concept in Chapter 11: educational malpractice
Foreseeability is an important key
- example: elementary teacher takes kids out on the playground, clear day with no clouds, lightning strikes and kills a child
negligence is one type of tort
TORT: a legal wrong or injury to a person or property which does not involve breach of contract and for which a civil (as opposed to a criminal) suit can be brought for the recovery of damages -- premised on the legal theory that people are liable for the consequences of their actions that result in injury to others
if something is REALLY an accident, you are not going to have tort liability
- an automobile wreck caused by a negligent driver WOULD involve torts
if we violate these duties that are resonable, then we are expected to PAY for our liability
- defamation, slander, and libel are types of torts
Four-Part test for negligence (inherited from 400 year old English common law)
The only way to determine if there was negligence is to go through this four part test
- plaintiff must show ALL FOUR to have a negligence case
1- DUTY OWED BY SOMEONE TO SOMEONE ELSE: did the defendant owe the plaintiff a duty of care?
-- for teachers, these could include duty of safety (duty to warn, provide safe equipment, provide safe environment, supervise in the classroom, supervise on a fieldtrip, there are LOTS of these)
2- BREACH OF DUTY: did the defendant breach the duty owed to the plaintiff? If no breach of duty, there is not a finding of negligence
3- PROXIMATE CAUSE: was the defendant's conduct in breaching the duty of care the proximate cause of the plaintiff's injury
-- means if there is some connection between what the defendant did or did not do (act of omission or comission) then proximate cause exists
4- INJURY: did the plaintiff suffer an actual injury for which s/he is entitled to recover
-- can hurt feelings equate to a finding such that a court in Texas will say "you can recover damages"? No.
- injury can be emotional distress, pain and suffering-- NOT hurt feelings
- can be loss of consortium (parents claimed they lost their relationship with their child): Spears case
compensable, colorable causes for which you can recover if you can show all 4 of these parts of the negligence test
IF DR HARTMEISTER IN AN EXAM ASKS: PROVIDE AN ANALYSIS OF WHETHER OR NOT THERE WAS NEGLIGENCE, WE MUST GO THROUGH ALL 4 STEPS IN LIGHT OF CHAPTER 11 A&A AND KEMERER AND WALSH CHAPTER 10.
- also need to be able to analyze if there are appropriate / fitting defenses (immunity could be one)
- everything we are talking about here concerns STATE law
the balance that the Texas legislature has struck between educator immunity and plaintiff rights has not been changed/addressed by the Texas courts
SEE TEC 22.0511 (added in 2003) - IMMUNITY FROM LIABILITY (a) A professional employee of a school district (public) is not personally liable for any act that is incident to or within the scope of the duties of the employee's position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.
Keys:
1- are you in the scope of your employee duties? (Scope of Employment)
2- are you exerciseing judgement or discretion (from TX Sup Ct, almost everything the teacher does fits in here)
- in 2003 they extended this a little bit to private schools
FACTS AND CIRCUMSTANCES ARE GOING TO DRIVE EVERY ONE OF THE SCENARIOS WE ARE ASKED TO ANALYZE
In 2003 the legislature just renumbered the "Immunity From Liability" statute, they have not changed the wording in 30 years
- this was NOT written to say, if you are negligent you are guilty
- the TX Supreme Court has interpreted it to say "discipline must be involved, negligent use of force must be involved"
-- not just corporal punishment, can be non-physical examples of punishment
The jury will (if the case is heard) ultimately decide what is "excessive"
Having insurance is always good, but it won't change the liability finding
assumption of risk is covered in A&A
- good luck on that if it is a mandatory activity like required PE
B) SECOND EXEPTION: THIS SECTION DOES NOT APPLY TO THE OPERATION, USE, OR MAINTENANCE OF ANY MOTOR VEHICLE;
C) IN ADDITION TO THE IMMUNITY PROVIDED UNDER THIS SECTION AND UNDER OTHER PROVISIONS OF STATE LAW, AN INDIVIDUAL IS ENTITLED TO ANY IMMUNITY AND ANY OTHER PROTECTIONS AFFORDED UNDER THE....
next week, we'll review what defines "professional educator employed by the district"
we will get to chapter 12 next week
Posted: Wed - February 2, 2005 at 08:45 PM |
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Published On: Feb 02, 2005 10:24 PM
Total entries in this category: 4
Published On: Feb 02, 2005 10:24 PM
