Can Teachers be Sued? YES, but don’t panic!
For aspiring teachers, there are two courses that I would immediately mandate: 1) Acting, and 2) School Law for Teachers. With the exception of a small amount of information related to Special Education Law, there exists no formal instruction designed for teachers. This causes all of us to be dependent upon others, like union officers and grizzled veterans who really don’t know the law but are full of great scary stories about what happened one time or what might happen if you try something and someone gets hurt, or how easily a teacher can be sued because of the crazy lawyers and parents out there, etc. This article will tell you what really happens from the standpoint of legal liability as well as a few other things that might happen in the school setting where legal issues could arise.
For example, here is something you have never heard before and nobody talks about that could cause you to be sued: It’s called “Repeater’s Liability.” What is it? You know about the “rumor mill” in your school or place of work. The rumor mill seems to be open 24-7- it never sleeps. Occasionally, someone tells you a story about someone else that, for example, may be shocking or salacious. You hear the rumor and you pass the rumor along to others. The story that is being passed around gets back to the one whom the story is about and this person comes to you and asks if you told this story to a certain person or persons. You reply, yes, you did, but you were merely passing along a story from the rumor mill that almost everyone already knows about, and besides, the story did not originate with you anyway. The person about whom you passed on the story decides to sue you for defamation claiming he was injured by this false story. Your defense is as you stated above- you were merely just passing the story along and you did not know whether it was true or false. Under the Doctrine of Repeater’s Liability, the jury finds you liable for Defamation and you have to pay damages to the person whom the story was about. Do you like gossip? Stop liking it. Repeater’s Liability means that if a person wants to come after you legally for a story that has been spread about him, the court will treat the story being spread as though it ORIGINATED WITH YOU. Do you need any greater motivation for not being a gossiper? This, of course, may cause you to avoid going into a faculty room unless absolutely necessary because these places are virtual gossip pits.
Here’s another one you probably never heard of that has the potential to be a problem for you some day. Everyone has heard of the “Deep Pockets Theory”. Thus is part of an old wives tale or urban legend that if you do something negligent you don’t have to be too worried because no lawyer is ever going to come after you- you don’t make enough money to make it worth the Plaintiff’s while. Instead, the injured party is going to sue the school district because they have a much larger liability policy and, quite simply, there is far more money to be had in damages. We’ve all heard this one. Here is the real story. It is possible in a lawsuit that the Plaintiff or injured party will come after just the school district, but he is probably going to come after multiple defendants, including you. However, for the sake of argument, let’s say that a negligent act by you causes a child to be injured, and the attorney for the injured child decides to sue only the school district and the district is found liable for the actions of its employee under a theory of Agency, meaning that the teacher is an agent of the school district. Under the Doctrine if Indemnification, the school district may now sue you to be reimbursed for the amount of damages they were required to pay in the original lawsuit. Thus, “Deep Pockets” or not, your negligent actions can cost you.
RES IPSA LOQUITOR
A third matter that you never heard about that could affect you by way of the above-described indemnification process is Res Ipsa Loquitor. It’s a very pretentious sounding legal term. It is merely Latin for “The Thing or event speaks for itself”. In the typical example, a child goes to school, and while sitting in a class, for example, a light fixture falls from the ceiling, hits the child in the head, and causes a serious injury. Here, the plaintiff will not have to prove that someone is negligent because, the court will reason that when a child goes to school, he is not supposed to be hit in the head by a light fixture and get injured. This is Negligence Per Se- there is nothing for the Plaintiff to prove- it’s obvious- the school is at fault. The district will be liable for damages. In a subsequent investigation, the district finds out that this happened once before in your class and you did not report it to anyone because no one got hurt anyway. The district could seek to indemnify you for this amount of damages. This is why, in whatever facility you do your teaching, the minute you find that some part of the facility is not working as designed or is broken, you put a memo- or a district work order- in writing with your signature and copied to the principal- and send it to the custodian or Director of Building and Grounds so that, in any subsequent investigation, you can show that you did all that was within the scope of your duties to remedy this situation. Don’t climb up a ladder and fix the thing yourself. That is outside the scope of your duties and could cause other legal complications.
LAWSUITS FOR NEGLIGENCE
Negligence is defined as the failure by the defendant to exercise the degree of care that a reasonable person in the same situation would use. In the education setting that would be, the reasonable teacher in the same setting as the defendant was in. Reasonable is an objective standard. An expert could be called upon to tell the court what a reasonable teacher would have done in the same situation.
Let’s begin by stating that anybody can sue anybody else for anything. However, the first thing you should know is that 1) lawsuits are infrequent 2) Not an automatic success 3) Often never reach the courtroom. You can relax- a little bit- because not everybody is lurking around corners waiting to sue people in schools at the drop of a hat. This is because lawyers have to take an oath to act in an ethical manner, so when a person comes to them screaming about something that happened in a school and how the person wants to take this all the way to the Supreme Court, the lawyer convinces them that 1) The school is not acting illegally, 2) I charge $250+ per hour for my services, 3) There is a $500 retainer for my services, 4) There is no clear guarantee of success, and 5) The Supreme Court, by a writ of Certiorari, only takes on the cases that it feels like taking on, not the ones the public thinks it should take on., and 6) The District might counter-sue us for Abuse of Process if we try to move forward with this action because it might be viewed as frivolous. This usually “cools the jets” of most people, and when they come to their senses, they return to the schoolhouse in more of a mood to talk intelligently about their problem.
That being said, there are issues related to liability that every aspiring teacher should be aware of when starting their job, but virtually everyone graduates with complete and blissful ignorance about.
When a teacher is sued for Negligence, the matter is adjudicated in a Civil Court. That means that a defendant will not be found guilty if he loses the case, instead he will be found to be liable. O.J. Simpson was found innocent of the murder of his wife and Ron Goldman by a jury of his peers in criminal court. However, Mr. Simpson was found liable in Civil Court and required to pay millions of dollars in damages to the Goldman family. He didn’t have the money, like most people who are liable to pay huge damages, so a lien was put on his property and his earnings are forever attached, so whatever he earns, less some small amount for living expenses goes completely to the Plaintiff.
The person doing the suing is called the Plaintiff, and the person being sued is called the Defendant. There may or may not be a jury, and if there is not a jury, then the judge becomes the trier of fact. There are some civil attorneys who have never been into a courtroom. If you recall the Tom Cruise movie, A Few Good Men, Lt. Caffey(Cruise) an inexperienced attorney is selected by the Jag Corps to handle this especially sensitive matter because he has a great knack for making sure things never get to a court room in the first place- he makes them go away through pre-trial negotiation. If you are ever sued and a child really did get hurt, your attorney may make an effort to settle out of court rather than have the child appear in front of a jury and allow these people to have their emotions affected. Many of these kind of cases never get to a courtroom for this and a variety of other reasons- the plaintiff may be on a fishing expedition to see what kind of deal he can work to get money from you as well.
If you are sued, you do not have to say a word during any part of the proceeding. The law does not require you to prove you DID NOT do something- it is the plaintiff who has the burden of proof. You have may have heard that in court, “It’s your word against his”… this is not true. Although the burden can shift back and forth, you will never have to prove that you did not do something. For the plaintiff to prevail in an action for negligence, he has a great burden. He must prove, by a preponderance of the evidence, that 1) You actually had a Duty, 2) You Breached that Duty, 3) You were the cause of the injury to the plaintiff, and 4) There actually was an injury to the plaintiff. In other words, a plaintiff alleging that your actions caused him to suffer great embarrassment will not be looked at by the court as an actual injury, and the lawsuit would be dismissed because the plaintiff could not prove every single element of negligence.
WHAT DETERMINES A DUTY?
A person can be shown to have a duty by the acronym SCRAP, meaning by STATUTE- CONTRACT-RELATIONSHIP-ASSUMPTION- or PERIL (Creation of…) The first three aspects are the most applicable measures in the school setting. Generally, the other 2 are less applicable, but we will review them quickly to clarify the matter. A teacher has a duty by statute because, under state laws, he or she operates In Loco Parentis- meaning in place of the parents, and as a contracted employee of the district he is an agent of the district during his contracted-for hours. Therefore, contract and statute come together in this determination. So, a teacher would be negligent if, upon seeing an altercation in the hallway, he ignored it and someone got hurt.. even if this was not his assigned classroom.
The third aspect- duty by relationship actually applies in the school setting as well because teachers are operating, as we said, in loco parentis. To illustrate, let’s say the neighbor’s child falls into his swimming pool and is drowning. You look out the window and witness this tragedy. What duty do you have to come to the aid of this child- NONE. You are guided only by the dictates of your conscience. However, if the person drowning is a member of your family- a relationship- then the law would require you to make every effort to come to the person’s aid. If you are in loco parentis, that is a third reason why you would be expected to come to the aid of children in the school setting.
The aspect of Assumption means that, once you assume a duty by beginning to care for someone or come to their rescue, you must stay with the person until help arrives, or if no one is around, to the best of your ability without putting yourself in peril. The best example of this is you and a host of other individuals are laying on the beach and a swimmer suddenly calls out for help- he is clearly in distress. You dive into the water and several other people- many of whom can also swim- nervously watch you swim out to the person in distress. All of them are capable of doing what you are doing, but they are not required to do so. You swim out 50 yards- 10 yards away from the drowning person- and you realize that you may not even have the strength to get back, so you stop your attempted rescue. The person drowns. Are you liable? Probably. Why? Because by swimming out to the individual in distress, you assumed responsibility for the situation, and your actions caused others to not attempt a rescue. If you and the drowning person were the only two individuals at the beach that day, and you stopped your rescue attempt, you probably would not be liable because your actions did not prevent others from attempting a rescue.
Peril, or Creation of Peril would best be described by saying that you are late to class and are running down the hall to your room. You turn the corner and smack into a child, knocking the child flat and out cold- similar to if you were driving. You caused the problem- you created the peril, so to speak, so you have the duty to provide the necessary assistance to the injured person.
#1… Here is an example of a analysis about whether a teacher had a duty. You teach at Mudville High School. It’s Friday night and you go to the football game. In the stands not far from you, a fight breaks out amongst a group of students. Do you have a duty to try to break the fight up? No. Why? Your contract states that you are required to work for the school district from 7AM till 3:15PM. This football game was at 7PM on Friday evening. You have no assigned duty- for example, as part of the game security staff- you are just a spectator like everyone else, thus, you are only guided by your conscience. You don’t have to get involved.
#2… You are asked to chaperone the Senior Prom being held at the Elk’s Club in Mudville. While you are on duty, a fight breaks out between rival gang members and 6-8 students are involved. You exit the building right away rather than risk an injury. The police come and restore order by arresting the perpetrators. Two students were seriously injured. Do you have a duty? Yes. Why. The Elk’s Club is the same as the school for the purposes of the Prom and you were officially assigned a duty- it was not a matter of conscience- it was your job. Did you cause the injury? YES. You did not hurt anyone personally, but your absence will be viewed by the court as the cause of the injury because if you were there, the court will presume that the injury would have been prevented. How about if you stay and successfully break up the fight? Can you be sued?YES. Why? You had a duty. Will the lawsuit succeed? Probably not. Why? Because you did not breach your duty. If the plaintiff cannot show a breach of duty, the lawsuit will be dismissed.
This is as technical as we want to get in the area of Negligence, but being aware of just this information can be very beneficial to a new teacher. It cut through all of the hype, urban legends, and old wives’ tales.
Keep this in mind; You probably will never be sued. If you are sued, it is very difficult to prove that you were liable, and it is not your word against the other sides- you don’t have to say a thing. However, if you are sued, your life will undergo a huge disruption. The case will take years to resolve, there will be lots of unwanted media attention, and you might wind up moving to another place to get away from the mess. When you interview at the next place, someone will ask: “Aren’t you the guy who was involved in that incident with a kid at XYZ School District? You will say, “Yes, but I was not found liable- I won the case.” Don’t be surprised when a letter comes two weeks later thanking you for your outstanding credentials but then saying that there were many fine candidates and someone else has been selected…” You will never know if there were “many fine candidates” or there was another reason you did not get hired. Sadly, in the courts, a win is not always an actual “win” in the long run- especially for teachers and coaches looking to continue their careers.
That being said, educate yourself, know that there will be threats made to sue, but if you are conscientious in your job, no one will be able to assert that you breached your duty. Without that, the lawsuit will be thrown out.