What is a tort?

A tort is any civil wrong independent of contract

Tort law evolved in the Middle Ages

Word derived from the Latin tortus (twisted)

Tort law provides a remedy in the form of an action for damages

Tort law affects education

Physical injury, not only to students but to employees and the public as well

Defamation of character, more commonly known as slander or libel

Educational malpractice

Student competence

Disability services

Intentional interference--a civil wrong because of the intent of the responsible party. Must be some voluntary intent to do some act that interferes with another person

Negligence--conduct falling below an established standard

Categories of intentional interference

Assault--putting someone in fear of bodily harm, mental as opposed to physical injury

Battery--physical damage of a person, often not the direct result of an intended act. Both forms of tort law can be used in conjunction with criminal charges

More categories...

False imprisonment--often called false arrest, occurs when a person is illegally detained against his or her will. Confinement must be total. Restraint can be imposed in the form of barriers, physical binding, or threats used to intimidate the person into submission. The imprisonment does not have to be intentional

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Mental distress--many courts are reluctant to grant damages for mental distress unless it is tied into another type of tort. Battery is frequently a prerequisite for mental distress claims

Elements to negligence

Four elements are essential to claims of negligence:

Standard of care

Unreasonable risk

Proximate cause

Actual injury

Standard of care

Courts have held that educators have the duty to provide an appropriate standard or duty of care for their pupils

Teaching assignment affects level of care

Standard of care is closely related to supervision

High standard areas require closer supervision

Unreasonable risk

The courts have held that educators have the duty to protect their pupils from an unreasonable risk

Educators may ask pupils to take a reasonable risk, but pupils must be provided with best possible instruction, supervision, and equipment to prevent harm

What is reasonable risk?

Reasonable Man Doctrine followed

Teacher's actions are compared to those of a "reasonable man" in the same circumstances

Four elements are considered: intelligence, physical attributes, perception and memory, and special skills

Could harm have been foreseen?

Doctrine of Foreseeability compares actions of a hypothetical reasonable person with the actions of the teacher

If the teacher acted reasonably, he or she is not negligent

Proximate cause

A sequential connection is created between the teacher's (negligent) conduct and injury to the pupil

The connection does not have to be direct, simply closely related in time, space, or order to the cause of injury

Classic case--lack of supervision

Actual injury

The law addresses real and substantial injury, not minor outcomes

In summary, for the teacher to be negligent, all four elements of negligence must be present, then the court attempts to determine whether the teacher acted in a reasonable manner

Adequate supervision, very closely tied to standard of care

Proper instruction (educational malpractice and preliminary instruction included)

Maintenance of equipment--routine and documented. Pupils must not use defective and potentially dangerous items

Requires the court to examine a pupil's age in determining negligence. Courts have long held that children under age 7 cannot be considered negligent under the law. They are not legally responsible for their actions (explains high standard of care expected of early childhood teachers)

Rule of seven, continued

Children aged 8-14 are presumed to be not negligent, but assumption may be rebutted. Burden on educator to prove pupil did know better

Children aged 15-21 (now 18) viewed as possibly negligent by the courts

Contributory negligence (actions contributed to injuries)

Comparative negligence (more than one person's negligence contributed to pupil's injuries)

Assumption of risk--courts assume pupils have received proper instruction and have used best possible equipment

Defenses continued

Courts also have held that pupils cannot assume risk unless they are aware of the risk)

Act of God (therefore unforeseeable)

Sovereign immunity (few states still allow doctrine that a state cannot be sued in the state's courts)

Degrees of negligence

Slight (failure to use great care)

Ordinary (failure to use ordinary care)

Gross (failure to use even slight care). Some courts define it as requiring willful misconduct, recklessness, or utter lack of all care

See advice of specialist, if uncertain

Understand limits of release forms (some states have save-harmless provisions that hold the school board responsible for damages if the teacher is found liable for specific actions)

Malpractice insurance provides some protection

Recommendations...

Perhaps most importantly, recognize your vulnerability and seek out information to better understand how to respond. Consider additional training (course work, in-service)