When we send our kids to school, we entrust our most vulnerable family members to the care and supervision of others. We generally trust schools and school boards to create a safe environment for our kids that is free from dangers and risk of injury, but as in most situations, accidents can and do occur.
This is especially true in today’s schools, where our children are not just sitting in a classroom. They may be on a field playing athletics, travelling with a school band, handling machinery as part of a technology or machinery course, or taking part in any number of other, similar extra-curricular activities.
When something goes wrong and a child is injured at school or on school property, families of the injured victim have rights just as any other family of a child injured outside of school would. The negligence analysis is often similar, but there may be some issues that are unique to schools, and some unique factual analysis to investigate whether the school is negligent.
If a child is injured in a public school the issues of sovereign immunity come into play. Sovereign immunity applies whenever a victim sues a government agency. Although we think of suing municipalities or public parks as government agents, venues like public schools or public hospitals also fall into the category of government entities qualified to the immunity.
The immunity does not mean that you can not sue a government entity at all. It just means that there are certain procedures that must be followed before suit is filed.
A written demand must be provided to the agency you are suing (here, it would be the school board), within three years of the accident, and two years of the claim is one for wrongful death. This in effect shortens the normal four-year time limits that ordinary negligence cases have.
The agency the letter is sent to has six months to investigate the claim, and either pay or deny it, but if it does nothing, the claim will be considered denied. Only at that point does the victim have a right to sue.
Sovereign immunity limits the amount of damages that can be recovered to $200,000 or $300,000 if there are multiple Plaintiffs. It also prohibits suing state employees individually. So even though the state has given its consent to be sued, in catastrophic damage cases, there may still be serious limitations to obtaining full reparation.
When the Immunity Applies May Be a Question
Sometimes the question of whether the school is responsible or a private actor is responsible is not so clear. For example, if the driver of a private bus company negligently crashes a vehicle carrying students on a school-sponsored trip, there may be issues over whether the bus was an agent of the state at the time it crashed. If a private physician commits malpractice while providing medical attention on-field during a school athletic event, there may be questions as to whether the physician is acting in his private capacity or as an agent of the school.
These issues will only get more complex as school boards, often seeking to cut costs, invite private companies on campus to conduct activities with kids. Whether with computer programming or therapy or athletics, more and more businesses are offering services to teach skills to children inside of and often during schools. Many may be skilled in what they are teaching, but not in how to manage kids or ensure their safety.
Factual Issues in School Cases
Outside of these sovereign immunity issues, liability becomes a factual one, which depends on whether an injury by a child is foreseeable, and thus, preventable by the school. Schools have unique properties that make a liability analysis a little different than with an ordinary business.
Whereas a Publix or a Walmart may have a duty to inspect their floors regularly, a school’s duty may be reduced. Certainly, in areas of high traffic, where students may spill liquids or drop items, finding a school liable where a substance was only recently spilled on a floor may be difficult.
On the other hand, like any business, schools have an obligation to keep items out of walkways, make sure desks and chairs are in working order, and, especially with younger children, may have obligations to protect children from themselves the same way you might child-proof a home.
Additionally, when it comes to younger children, supervision may become an issue, in areas where too many kids are allowed to engage in an activity or be in an area with too few adult eyes nearby to keep track of them.
Injuries by Other Students
In many schools, injuries caused by other students can be a serious issue, as well. Injury can result either from one-time incidents, like a random fight in a parking lot, to repeated assaults by known attackers, as is the case with bullying. These cases present difficult issues for schools.
As a general rule, because we look to foreseeability, schools should always be notified where there are bullying situations. A school that knows a child presents a danger to other children, but does nothing about it, may be liable to the injured child’s family.
The same holds true for fighting. Schools generally are not responsible for random, unexpected attacks. But in most cases, fights and attacks involve children who the school knew or should have known could be dangerous. Or, fights may occur in places like a parking lot which the school knows is a prime location for violence. In that case, the school may have a heightened duty to provide additional patrols or institute policies and procedures to avoid the chances of a fight or attack.
If you or a family member are injured while in school or during a school sponsored activity, do not assume that there is nothing you can do. Contact the attorneys at Brill & Rinaldi for a free consultation about your case, and to evaluate the possible avenues of recovery.