What Could Possibly Go Wrong A few examples

What Could Possibly Go Wrong? A few examples…

DISCLAIMER • This is not legal advice. • While Lane is a practicing lawyer and judge, Jordana’s bar license is inactive and this is not her area of expertise. • DO NOT RELY on examples provided in this presentation as definitive about applicable law and liability – we intend these examples only to demonstrate examples of situations that became lawsuits. • Different states, different judges, different facts, different lawyers, different juries, etc could create different results.

Some initial things to consider: 1. Writing doesn’t go away. 2. Sometimes things are good until they’re not good kids (and parents) remember things from the past if things go sour later. 3. What kids hear is often not what you actually said. 4. Parents talk to each other. Kids talk to parents. 5. False accusations happen.

Careful what you say:

Parent sued teacher, alleging his child was emotionally injured by his teacher's harassing remarks. The mother of a high school minor sued her son's high school teacher for emotional injury caused by harassing remarks made by teacher to her son. The teacher had heard of the student's "infatuation" with a female peer and made several sarcastic remarks in the hall regarding the student's interest in the peer. Held: For the teacher. The court found that, despite the teacher's poor judgment in dealing with the student, that did not exempt her from the immunity granted to her by state law as a teacher. Kobza v. Kutac, 109 S. W. 3 d 89 (Tex. App. 2003).

Student sued school district alleging discrimination based on sex under Title IX. Student was repeatedly hit by other male students in the testicles, aggravating an existing medical condition. The principal and coach were put on notice by parents on several occasions and the coach told student to "stop complaining" and "stand up for himself. " Held: For the student. Once a principal or teacher is put on notice of harassment, she or he must take steps to respond. Doe v. Brimfield Grade Sch. , 552 F. Supp. 2 d 816 (C. D. Ill. 2008).

Mother in dispute with district over emails The mother, Holly Miller, has been in a dispute with the school district for more than 19 months over the education of her 12 year old daughter, a seventh grade student with learning disabilities. Miller said she got copies of district emails about her daughter through an open records request. Miller’s daughter suffers from anxiety, emotional distress and panic attacks. E mails show Miller began talking to educators about her daughter’s academic struggles in October 2014. Principal Jon Pollard sent an email to teachers regarding testing strategies for the girl. (continued on next slide)

“So we are continuing to follow the policy of appeasement. Look how that worked out with Hitler, ” Kosco replied in an email. On Oct. 27, 2014, Pollard sent an email to teachers asking them to “make sure the following supports are in place, ” such as weekly email communication with Miller, checking homework at her seat, small group testing and signing a weekly planner for the girl. “There is absolutely nothing positive I can say to this. Shame on this district. It would be nice if we spent this much extra time on the regular Ed and gifted students. You know, those that are going to amount to something, ” Kosco replied. “This mom is absolutely nuts and the child is ignorant and insolent!. . . I’ve never been so discouraged with a job in my life. Our kids are truly screwed. ” In an email to Pollard 19 minutes later, Kosco said the “situation is a nightmare for you as well, and I’m preaching to the choir, but I needed to vent. I’m just so FRUSTRATED. ”

Sometimes what becomes a lawsuit can be…surprising.

Students sued school board alleging First Amendment free speech violation. Students in the gifted program submitted a t shirt design for the official class shirt. When their design was not chosen, the gifted students wore t shirts with their design rather than the design chosen as the official class shirt. Students that wore the alternate t shirt were punished via confinement to their homeroom. Held: For the school board. The alternate t shirt worn by the students as protest was not speech protected by the First Amendment and was not immune from regulation by school officials. Brandt v. Bd. of Ed. of City of Chicago, 480 F. 3 d 460 (7 th Cir. 2007).

Parents alleged day care center was responsible for sexual assault of their child. While the child was playing in the bathroom at the day care center, the child was sexually assaulted by another child. Held: For the day care center. The day care center had no prior knowledge of sexual activity or violence at the center; therefore the center was not liable for the unanticipated actions of one of its students. Dennard v. Small World Ctr. , Inc. , 815 N. Y. S. 2 d 240 (N. Y. 2006).

Driving instructor sued his insurance company for reimbursement of expenses from lawsuit filed by individuals injured in accident caused while instructor was driving the district's van for personal reasons and while under the influence of alcohol. The instructor sued his personal automobile insurer for lawsuit settlement expenses claiming the insurance company breached its contract by failing to defend and reimburse the instructor for the lawsuit brought by passengers injured in the automobile accident.

Supervising… REMINDER: This is not what the law definitively says about supervision requirements one way or another, these are just examples of various court findings to help you make considered decisions.

Consider creating a Handbook • Parents and students sign at start of year. • Can be cited when issues arise • Do not leave the hotel without permission from [me/designated coach or teacher]. • Each evening, a coach or chaperone will tell you the time to be in your room for the night. If you do not think you were told a time, please ask. • Plan ahead for how many people in your room need to shower.

Parents sued student, school and school board alleging they were responsible for their child's broken jaw. The parents claimed the students were in the gym without permission or supervision, because school personnel had failed to supervise the children or ensure that they did not enter the gym or remain in the gym unattended. However, seven students were able to gain access by slipping by the teachers charged with monitoring entrance to the gym. Held: For the parents. The court found the school and the school board were liable. However, the court limited the liability for each because the assault and injury would not have happened if either student had followed the school rules. Coutee v. Glade Middle Sch. , 848 So. 2 d 754 (La. App. 2003).

Parent sued school board, alleging that it was responsible for injuries sustained by student while on school trip. Parent claimed that coaches on the trip failed to provide adequate supervision and that student was sexually assaulted because of that failure. Held: for the parent. The evidence supports that the coaches failed to provide adequate supervision and that the failure was the cause of the sexual conduct. Whether the student consented to the sexual contact is irrelevant. Moreover, the incident was foreseeable due to a history of sexually related incidents at the school. Doe ex rel. Doe v. De. Soto Parish Sch. Bd. , 907 So. 2 d 275 (La. App. 2 nd Cir. 2005).

Parents sued school district alleging negligent supervision resulted in their child's death. A 13 year old student left school after her morning classes without being signed out. The next day she and a male family friend were found dead, from poison ingestion. Held: For the district. The district did not breach its duty, because the school had no specific knowledge of the particular danger. Specifically, the parents could not demonstrate that at the time of her death the student was in the school's custody. Chalen v. Glen Cove School Dist. , 29 A. D. 3 d 508 (N. Y. App. Div. 2 d Dept. 2006).

Parents of student sued school district for negligent supervision after student was assaulted by classmate. The student sustained injuries during an altercation in a classroom that was supervised by a substitute teacher. The substitute teacher left the classroom after noticing one student harassing another. Held: For the parents. The school had notice of prior similar conduct on the part of the assaulting student. Since there was a factual question concerning the circumstances leading to the altercation, the case could proceed. Wood ex rel. Wood v. Watervliet City Sch. Dist. , 30 A. D. 3 d 663 (N. Y. App. Div. 3 d Dept. 2006).

Student and parents sued school resource officer for not reporting his knowledge of a teacher inducing a student to have sexual relations with another student. A physical education teacher coached an athletic team and encouraged one of his team members to pursue a sexual relationship with a student in his P. E. class. The teacher offered use of his car and office to the couple to facilitate their sexual encounters. The school resource officer was a friend of the teacher and made aware of the situation. Held: For the student. It was within the officer's duty to protect the minors and report the act. Smith v. Jackson County Bd. Of Educ. , 608 S. E. 2 d 399 (N. C. App. 2005).