Eckes, Decker \u0026 Richardson 2012 Trends in Court

$: Eckes, Decker \u0026 Richardson 2012 Trends in Court$
West's Education Law ReporterMarch 15, 2012

Commentary

*505 TRENDS IN COURT OPINIONS INVOLVING NEGLIGENCE IN K–12 SCHOOLS: CONSIDERA-TIONS FOR TEACHERS AND ADMINISTRATORS [FNa1]

Suzanne E. Eckes, J.D., Ph.D., Janet R. Decker, J.D., Ph.D., & Emily N. Richardson, J.D. [FNaa1]

Copyright 2012 by Thomson Reuters/West – No Claim to Original U.S. Government Works

I.Introduction

A teacher is supervising her first–grade class on the playground when a student suddenly slips off the mon-key bars breaking both of his arms. Although the teacher could not have prevented the accident, the student'sparents still sue the teacher and the school district for negligent supervision. Similar scenarios involving studentinjuries on school grounds often weigh on teachers' minds. [FN1] It is not surprising that teachers are concernedabout legal liability resulting from student injury, [FN2] considering various news reports and publications aboutnegligence in schools. [FN3] As other school law scholars have noted, some of the fear of legal liability that ad-ministrators and educators have about student injury might be exaggerated. [FN4] Nevertheless, teachers need aknowledge base about negligence; ignorance of the law is, after all, no defense. [FN5] The purpose of this articleis to provide practical guidance to *506 preservice teachers, teachers, and administrators about why some oftheir fear about negligence in schools might be unfounded. At the same time, it educates school personnel aboutthe basic principles of negligence. After providing a basic overview of negligence in K–12 schools, includingthe elements of the prima facie negligence case and a discussion of the major defenses, this article reports sever-al negligence cases involving K–12 public schools over a three year period. Based on these findings, this articleconcludes with a discussion of how teachers' fear about being sued for negligence might be unnecessary andwhy current federal teacher protection law may not be as helpful to teachers in negligence cases as they mayhave originally imagined.

II.An Overview of Negligence

Torts are civil wrongs that result in personal injury, [FN6] for which a court can provide relief for damages.The most common tort is negligence, and this is the tort that is an area of concern for many educators. [FN7]Negligence has been defined as a failure to do something that a reasonable person would do or doing somethingthat a reasonable person would not do. [FN8] For example, would a reasonable teacher leave his third–gradeclassroom for five minutes to take a personal phone call? If a student were injured in his class during the call,courts would consider whether the teacher acted like a reasonably prudent teacher would have acted in a similarsituation.

Negligence cases in schools focus also on whether a reasonable person in the school official's position couldhave anticipated the harm. [FN9] Courts have often reasoned that school personnel are not required to anticipate

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© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

all acts that occur in schools. [FN10] As one court explained, “As is often the case, accidents...involving schoolchildren at play happen so quickly that unless there was direct supervision of every child (which we recognize asbeing impossible), the accident can be said to be almost impossible to prevent.” [FN11] In the example de-scribed above, one could arguably anticipate that a student might get injured in a third–grade classroom if leftunsupervised for five minutes. If the third–grade student's parent sued, in addition to the teacher being negligent,the parents would likely argue that the school district is negligent for the acts of the teacher. Specifically, schooldistricts can be found vicariously liable, even if they did not contribute to the negligence, for negligent acts or afailure to act by their teachers during the course or scope of their employment. [FN12]

A.The Elements of Negligence

There are four elements that must be demonstrated in order for students and parents to prevail in their negli-gence claim against a school district or *507 educator. [FN13] Specifically, students and parents must demon-strate: (1) that the school district or educator owes a particular duty to the injured student; (2) that the district oreducator breached the duty by failing to exercise an appropriate standard of care; (3) that the negligent conductwas the proximate cause of the injury; and (4) that actual damages (e.g., a physical injury) have occurred.[FN14] Each of these elements is discussed below.

(1) Duty. The law is clear that educators have a duty to supervise their students and when they breach thatduty they may be held liable for negligence. Parents rely on school personnel to supervise and protect their chil-dren at school. The duty that teachers generally owe students involves proper supervision, appropriate instruc-tion, and adequately maintaining the classroom. [FN15] To illustrate, a case involving a third–grade student,who was injured at school when two older students bumped into her during a fire drill, addressed a teacher'sduty to supervise his students. [FN16] The injured student's parents sued and claimed that the injury was a resultof inadequate supervision. The teacher, on the other hand, stated that he had given clear instructions to the stu-dents about the fire drill. [FN17] The teacher had specifically told the students to line up in pairs, exit theclassroom, go down the stairs to the ground floor, exit the school, go down the steps to the sidewalk, and thencross to the other side of the street. When the fire alarm went off the teacher was at the front of the line and ledthe students out of the school. During the drill, he looked back to check on his students on several occasions.The injured student testified that she was on the sidewalk in front of the school when the teacher reached theother side of the street, and while she was running to catch up with her teacher, she was bumped by two otherstudents and fell. [FN18] The plaintiff additionally argued that the teacher should not have been at the front ofthe line, but in the middle or rear to ensure the safety of all of the students. The appellate court ruled that theteacher fulfilled his duty to supervise the students in this case and therefore was not negligent. [FN19]

Courts have also reasoned that the amount of duty one must provide often depends on the age and maturityof the child. Some courts have found that students under age seven cannot be capable of negligence and that stu-dents over the age of fourteen years are capable of negligence. When students are between the ages of seven andfourteen, they are presumed to be incapable of negligence but as the child nears age fourteen, the presumptiongrows weaker. [FN20] However, some courts have adopted the view that a *508 child under seven might be cap-able of negligence. Courts that have raised this question ordinarily have done so on the grounds that such a de-termination is a matter of fact, as opposed to one of law. [FN21]

(2) Breach of Duty. School officials are expected to use ordinary care in supervising and disciplining stu-dents and are considered to have breached their duty of care when they fail to conform to an appropriate stand-



ard of care. [FN22]Specifically, a breach of duty occurs when a school official fails to act reasonably under thecircumstances. For example, when a seventh–grade student sat on a broken chair and sliced open his fingerwhile at school, he sued and argued that school officials failed to repair the chair that they knew was broken.[FN23] Overturning the trial court's decision, the appellate court held that the school board's motion for sum-mary judgment should not have been granted. The court reasoned that the student established a triable issue offact that school officials may have had knowledge that the chair was broken. [FN24]

In a second case where a student was injured while learning to play golf, school officials were not found tohave breached their duty. In this case, the student stepped forward while a classmate was swinging a golf cluband sustained injuries to his face. [FN25] His parents sued the school district for negligent control and supervi-sion. The school district contended that the gym teacher had instructed the students to remain at a safe distancefrom one another. Overturning the trial court's decision, the appellate court determined that the school officialshad provided adequate supervision of the students. [FN26] Thus, the teacher was not found to have breached hisduty.

(3) Causation. Before negligence law assigns responsibility to a defendant for the plaintiff's injury, it re-quires the plaintiff to show a causal link between the negligence and the harm. [FN27] It is not enough for theplaintiff to show that the defendant's conduct caused the harm; to prevail, the plaintiff must show that the de-fendant's negligence (i.e., the part of the defendant's conduct that constituted a breach of duty) caused the harm.[FN28]

There are two types of causation, cause–in–fact and proximate cause. Sometimes courts employ the “but for”test to determine whether the school official's conduct was the cause–in–fact of the student's injury. [FN29] Un-der the cause–in–fact test, the student would need to demonstrate that “but for” the school official's act or failureto act there would not have been an injury. In determining proximate cause, courts determine whether the teach-er's action is close enough to the chain of events that caused the harm. Specifically, *509 there must be a causalconnection between the alleged misconduct and the resulting injury. Oftentimes when making a determinationregarding proximate cause, courts will ask whether the incident was foreseeable. [FN30] The proximate causedetermination is meant to address the “logic, fairness, policy, and practicality” of holding the defendant liablefor the plaintiff's injuries. [FN31] Put simply, the proximate cause determination prevents a court from imposingliability on a defendant where the connection between the defendant's negligence and the plaintiff's harm is too “remote,” or tenuous. [FN32]

In one example, during a game of freeze tag at school, a fourth–grade student was accidentally knocked tothe ground by a classmate. When the student was getting up, a different student tripped over him and caused thestudent's face to hit the floor. The student lost two permanent teeth. The injured student argued that the gymteacher and the teacher's aide were negligent in failing to witness the initial collision and failing to intervene,which could have prevented the different student from tripping over the plaintiff student. The appellate court af-firmed the lower court's grant of summary judgment to the school district. The fact that the teachers did not wit-ness the incident was held to be insufficient to create a triable issue of fact as to negligent supervision. The courtalso reasoned that the student failed to establish proximate cause of the injury–causing event; failed to disputethe district's showing that the teacher–to–student ratio was adequate and that the game itself was not unsafe; andfailed to prove a history of disciplinary problems among the children involved. [FN33] In this case, the accidentwas not foreseeable.

(4) Damages. Even if the above three elements are met (duty, breach of duty, and causation), there must also



be evidence of an actual injury to prevail in a negligence claim. For example, if a student falls off the monkeybars during recess and breaks his elbow, the student would have an actual injury. A psychological injury mayalso suffice. However, minor issues such as a scraped knee or a ripped shirt would not be considered an injury.

B. Defenses to Counter a Claim of Negligence

There are four main defenses that are relied upon by school districts when they are sued for negligence. Thedefenses include (1) governmental immunity, (2) contributory negligence, (3) comparative negligence, and (4)assumption of risk. Thus, even if a plaintiff is able to successfully argue that all four elements of negligence aremet, a school district could still prevail if it provides a persuasive defense argument.

(1) Governmental Immunity. A school district might rely upon governmental immunity as a defense, arguingthat the state (including the public school district) is generally immune from tort liability, unless the school dis-trict has assumed such liability by constitutional provision or legislative enactment. More commonly, state legis-latures have enacted laws that shield *510 governmental entities from liability. [FN34] Immunity for publicschool districts varies greatly by state law. [FN35]

Under most statutory schemes, a school district is not liable for acts committed within the exercise of its dis-cretionary functions or duties (i.e., those functions and duties within the scope of the board's authority, butwhich require the exercise of personal judgment). [FN36] Some statutory schemes differentiate, however,between discretionary functions and ministerial functions (i.e., those functions that involve simple obedience tolaws or regulations, as opposed to the exercise of personal judgment). [FN37] Accordingly, in a jurisdiction thatdoes not shield school authorities absolutely from liability, a school district may be held liable for failing to ad-here to a particular law, regulation, or district policy. [FN38]

(2) Contributory Negligence. If state law permits, school districts might also use the defense of contributorynegligence, arguing that the student contributed to his or her own injuries. Contributory negligence is a strictrule because a plaintiff who is in any way negligent–no matter how insignificant his or her responsibility is—canbe prohibited from recovery. [FN39] The plaintiff's contributory negligence bars recovery against a defendanteven in situations where the defendant's negligent conduct would otherwise make him or her liable to theplaintiff.

(3) Comparative Negligence. States that have not adopted contributory negligence as a defense may have en-acted the comparative negligence defense. The comparative negligence defense divides the damages between theparties who are at fault. Under this defense, both parties are at fault to a certain degree. [FN40] With comparat-ive negligence, there is a reduction of damages to be recovered by the negligent plaintiff in proportion to his orher fault. [FN41] For example, in a comparative negligence case, a gymnast might be found comparatively neg-ligent if she sustained injuries when attempting a stunt that was not sanctioned by the coach. Also, if the coachhad negligently instructed the gymnast, the coach might also be responsible for some of the gymnast's injury.The court would then apportion the fault between the student and the coach.

(4) Assumption of Risk. When the student knew of the risk of injury involved, yet still participated in theactivity, school officials might claim the defense of assumption of risk. Within the school context, assumption ofrisk means that the student, in advance, has given his or her express consent to relieve the school district of re-sponsibility for injuries common to or inherent with the activity. [FN42] A student who voluntarily assumes arisk of harm arising *511 from the nature of the activity cannot recover for such harm. This defense is especially



prevalent in injuries resulting from interscholastic athletic activities, where there is no compulsion to participate.[FN43]

III. Negligence Cases

This article examines all of the negligence cases that were reported in the “Torts” chapter in Yearbook ofEducation Law (“Yearbook”) over a three year period (from 2009–2011). [FN44] The tort chapters in the Year-book include all cases that were included in West's Education Law Reporter's “In This Issue” index under theheading “Torts.” [FN45] Within the tort chapters, the authors examined only those cases involving a student in-jury in a public K–12 school that occurred on school grounds during the school day, and those cases involvinginjury while en route to or from school and injuries during school–sponsored field trips. [FN46] Due to spacelimitations, only the most recent year of cases are discussed below—those cases that were published in the 2011Yearbook. [FN47] The cases examined from the 2009 and 2010 Yearbooks are categorized but not discussed inAppendix A. The court opinions that were summarized from the 2011 Yearbook provide an interesting snapshotfor teachers regarding negligence cases that occur in K–12 schools. The 2009 and 2010 Yearbook cases includedin Appendix A follow the trend found in the 2011 Yearbook cases. Overwhelmingly, school districts prevailed incourt cases involving negligence.

The 2009–2011 Yearbook cases were coded to identify the facts, procedural history, legal claims, court'sholding, and court's rationale. Cases were then divided into the following three categories: (1) cases where theschool district was not found liable for the student injury; (2) cases where the school districts were found liable;(3) cases that remain undecided (for example, those that have issues of fact still in play). Those cases that havenot *512 proceeded to a full trial on the merits. Some of the cases under this category involved a school districtlosing its motion for summary judgment because there were questions of fact related to the school district's liab-ility that needed to be resolved.

There are a few limitations associated with the approach used for this article. Of primary concern is thatmany state cases are not reported in West's Education Law Reporter, and are therefore not included in the Year-book. Also, many cases settle before entering court and it is therefore difficult to determine whether the schooldistrict admitted to any liability. For example, oftentimes the school district and/or the school district's insurersettle lawsuits in order to avoid wasting time and expenses. When this occurs, school districts may spend largeamounts of money to settle; consequently, these stories are not told. Finally, the authors cannot determinewhether some negligence lawsuits were never litigated because of teacher protection statutes. Nevertheless, thisexamination provides some helpful insight for preservice teachers, teachers, and administrators about the issuesinvolved in recently reported negligence cases against school districts and/or educators.

A.Summary of Cases

Cases ruling in favor of the school district. Of the 21 cases examined from the 2011 Yearbook, the schooldistrict prevailed in 17 cases. In one case where the court held for the district, a high school student was injuredin a floor hockey game during a high school gym class. [FN48] Another student in the class accidentally hit theplaintiff student on the hand with his hockey stick. The injured student's mother filed a lawsuit against theschool district alleging negligence. Reversing the lower court's decision, the New York appellate court dis-missed the mother's complaint. The court found that no amount of supervision would have prevented this injuryfrom occurring and that there was no triable issue of fact regarding whether the hockey game was properly su-pervised. [FN49] In a similar case involving floor hockey, a New York appellate court affirmed that a school



district was not liable for a high school student's leg injuries that occurred during gym class. [FN50] The courtreasoned that no level of supervision could have prevented the spontaneous and unintentional act that caused thestudent's injury. [FN51] In a third case involving floor hockey, a seventh–grade student was accidentally struckin the mouth by a classmate's hockey stick. [FN52]The gym teacher testified that he had instructed the studentsprior to the hockey game that high–sticking was defined as lifting the stick above one's waist and was not al-lowed. However, the plaintiffs argued that the gym teacher should have instructed that “highsticking” wasdefined as lifting the stick above the opponent's knees. A New York appellate court reversed the earlier decisionto deny the school district's motion for summary judgment. The appellate court reasoned that this injury *513would have occurred regardless of how “ highsticking” was defined and that the teacher's instruction was not theproximate cause of the student's injury. [FN53]

In another case where the public school district prevailed, a second–grade student was injured when a class-mate, who was running, accidentally pushed the plaintiff as they were lining up after lunch. [FN54] As a result,the plaintiff's face struck a lunch table. The plaintiffs filed a negligence action against the school district al-leging that negligent supervision was the proximate cause of the student's injury. The school district argued thatthe students had been warned by the cafeteria monitor not to run. The New York appellate court affirmed thelower court's decision to grant the school district summary judgment. The court reasoned that this accident couldnot have been prevented and that school districts should not be liable when an “accident occurs in so short aspan of time that even the most intense supervision could not have prevented it.” [FN55]

A mother sued a school district after her eight–year–old daughter was injured when another student hadclosed a bathroom door on her fingers. [FN56] A New York appellate court reversed the trial court's denial ofthe school district's motion for summary judgment. The court held that the school district was able to meet thestandard of care in this case to avoid liability because an aide was monitoring the students in the restroom. Thecourt also reasoned that the incident was spontaneous and unintentional. [FN57]

The school district also prevailed when a student fell and was injured on a wet staircase at school. [FN58]The school district argued that it did not create the wet condition because it was raining outside nor did it havenotice of the condition. In an action to recover damages for the student's alleged injury, the court ruled in favorof the school district. [FN59] Affirming the trial court's decision, the New York appellate court found that theschool district did not create the hazardous condition or have constructive or actual notice of its existence. Thecourt relied on precedent that held a defendant is not required to continuously mop up all tracked in rain. [FN60]In a similar case, a seventh–grade student fell and was injured after slipping on water in the school. [FN61] Thewater had accumulated on the cafeteria floor. A New York appellate court affirmed a dismissal in favor of theschool district since it lacked actual or constructive notice of the hazardous condition. [FN62] In another slipand fall case, the mother of an eighth–grade student who slipped, fell, and was injured while playing basketballduring gym class filed suit speculating that he fell because wax on the gym floor made it slippery. [FN63]A NewYork *514 appellate court affirmed the trial court's decision to grant summary judgment in favor of the schooldistrict. The court reasoned that the plaintiff failed to establish that the school district was negligent in causingthe student's injury. [FN64]

Two of the cases where the school district prevailed involved injuries occurring during recess. In the firstcase, a kindergarten student was injured after she slipped and fell during recess while running on gravel foundon the school's playground. [FN65] The plaintiffs alleged that the student was injured as a result of negligent su-pervision and defective surfacing on the playground. Expert testimony provided by the district showed that theplayground's surface was in line with the accepted safety standards and had been maintained properly. [FN66]



The New York appellate court reasoned that the plaintiffs failed to demonstrate that the gravel created a slippinghazard which proximately caused the injury. [FN67]

In another case involving an injury on the playground, a four–year–old student tripped because of an allegedhole covered by mulch on the school playground. [FN68] The New York appellate court reversed the lowercourt's denial of the school board's motion for summary judgment. [FN69] The appellate court reasoned that theschool district did not create or have actual or constructive notice of any playground defect. Further, the defend-ant was able to establish it had no prior complaints about the playground and it had maintained the mulch in ac-cordance with good and accepted industry practice. [FN70]

A school district, a teacher, and two aides were sued after a student with severe disabilities fatally chokedwhile eating at school. [FN71] An appellate court in Missouri upheld the trial court's decision that the schooldistrict had not waived its sovereign immunity since it had not created a dangerous condition. The court alsoheld that the employees were officially immune because they were engaged in discretionary acts. [FN72]

School districts or teachers may be liable for student injuries that take place off–campus and/or outside ofschool, such as injuries that occur while students are en route to and from school. It is important to note thatteachers would likely not be involved in cases involving students who are en route to and from school. A NewYork appellate court held that the school district had no duty to supervise an eighteen–year–old student who wasinjured during an off–campus Rotary Interact Club spaghetti dinner. [FN73] In this school district, students werepermitted to satisfy the school's health class community service requirement by participating in Rotary InteractClub activities. During one Rotary event, the student burned himself while attempting to light a canister thatkept the food warm. The school district *515 argued that it had no duty to supervise the students at thisoff–campus event. [FN74] The court reasoned that even if the school district owed the student a duty, the injurywas not foreseeable because school officials had no notice that the student would attempt to light the canisterherself. [FN75]

In a school bus case, the plaintiff mother's kindergarten–aged child was allegedly sexually abused by twosecond or third–grade students on the bus. [FN76] The mother argued the school district was negligent in its su-pervision, training, and hiring. [FN77] The New York appellate court reversed the trial court's denial of theschool board's motion for summary judgment. The court reasoned that the school officials did not have actual orconstructive notice of similar conduct. Though the mother claimed that the school district had notice of previoussimilar instances, the court found that her affidavit was inconsistent with her deposition testimony. [FN78]

In another case involving sexual assault occurring on a school bus, New York's highest state court held thatthe school board was not liable. [FN79] A five–year–old student was sexually assaulted by an eleven–year–oldstudent on the bus. Due to previous inappropriate interactions on the bus, including an incident where the of-fending student had exposed himself and forced the five–year–old to touch him, the mother of the five–year–oldhad requested that the bus driver prevent the two children from sitting with one another. In addition to the schooldistrict, the plaintiffs sued Child and Family Services (CFS). The perpetrator was a foster child who had a his-tory of psychiatric treatment. [FN80] The mother sued the school district for negligent supervision and CFS forfailing to warn the foster parents and others about the child's behavior. New York's highest state court held thatthe perpetrator did not have a history of sexually aggressive behavior and thus, the school district and CFS didnot have specific knowledge or notice of similar conduct. [FN81]

In the third case involving a school bus, a six–year–old student fractured her wrist when the bus driver



braked quickly to avoid hitting a car that pulled out in front of it. [FN82] The school district relied on the emer-gency doctrine to argue that the driver had responded reasonably to an emergency situation and that he did notcreate the dangerous situation. The appellate court affirmed the trial court's decision to grant the school board'smotion for summary judgment. [FN83]

Two school districts were not held liable in cases involving students who were walking to and from school.In the first case, a high school student was struck by a vehicle while attempting to cross a state highway. [FN84]Before the school day began, she left the school grounds to smoke a cigarette and was *516 injured as she re-turned to school. When returning to school, the student had failed to use the traffic signal, crosswalk, or a cross-ing guard at a nearby intersection. She and her parents sought monetary damages claiming the school district andschool personnel failed to properly supervise and ensure her safety while crossing the street. However, the NewYork appellate court held that when the student left school grounds, the school district no longer had a duty.[FN85] The same reasoning was applied in another case when a student, who typically rode the bus, was assaul-ted by other youths on his walk home from school. [FN86] The incident took place approximately thirty minutesafter the student left the school. Reversing the trial court, the New York appellate court held the school boardwas not liable because the student was no longer in its custody or control. [FN87]

Cases ruling in favor of the student. Only one court opinion rendered in the 2011 Yearbook was decided infavor of the student. Affirming the trial court's opinion, an appellate court in Wisconsin found that a school dis-trict and a teacher were 80% liable for an injury involving an eighth–grade student. [FN88] The plaintiff studentwas seriously injured by a scalpel used in science class for an assignment that required dissecting a flower.[FN89] The teacher was aware that other students had been injured by the scalpel in the past. The appellate courtheld that the teacher was not immune to liability because she had a ministerial duty, under the “known and com-pelling dangers” exception. The court reasoned that the teacher could have done more to avoid the accident butshe failed to do so. [FN90]

Cases that remain undecided. Of the 21 cases in the 2011 Yearbook, three cases are inconclusive becausethere are issues of fact requiring determination by the jury or trial judge where there is no jury. Oftentimes, aninconclusive case results from the denial of a school board's motion for summary judgment. School districts maysettle with the plaintiffs if they lose this motion.

The first inconclusive case involves a high school student who injured herself after she tripped or slippedover a volleyball net that was lying on the gymnasium floor. [FN91] It was not disputed that the placement ofthe net was open and obvious, but whether leaving the net on the floor created an inherently dangerous conditionwas still open to dispute. Affirming the lower court's decision, the New York appellate court denied the schooldistrict's motion for summary judgment because the district had not demonstrated as a matter of law that leavingthe net on the floor did not create a hazardous condition. [FN92]

In another case, a twelve–year–old student was injured during a summer school program after he fell off aschool banister that he had tried to slide *517 down. [FN93] The plaintiffs argued that the school district wasnegligent in supervising the students and breached its duty because no school official was supervising when theinjury occurred. New York's highest court found that the school district could not argue assumption of risk, butthat a comparative fault allocation might be appropriate in this case. Thus, the negligence claim would be sub-ject to further examination. [FN94]

In a final case that remains undecided, a student broke his leg after an altercation with another third–grade



boy during recess. [FN95] The teachers who were on recess duty allegedly did not intervene when students star-ted throwing asphalt at each other, which eventually led to one student getting pushed down and injured. [FN96]The New York trial court granted the school district's motion for summary judgment, but the appellate court re-versed, holding that there were genuine issues of material fact as to whether the school board's failure to ad-equately supervise was the proximate cause of the student's injury. [FN97]

Because it is difficult to make broad generalizations about negligence cases based upon only 21 cases, thisstudy also examined the negligence cases reported in the Yearbook from 2009–2010. Similar findings were dis-covered; school districts are often the prevailing party—at least in the reported cases included in the Yearbook.See Appendix A for a list of the 2009–2010 Yearbook cases.

B. Discussion and Conclusions

The examination of the court opinions published in the Yearbook highlight several interesting findings. Ofthose court opinions included in the 2011 Yearbook, only 21 court opinions directly involved students suingschool districts for negligence in the classroom, on school grounds, students coming to or from school, or stu-dents attending school–sponsored field trips. Within this sample of cases, the parents only prevailed in one case.These findings suggest that although teachers should be concerned about negligence, the likelihood of a schoolofficial being involved in a court case may not be as great as some educators may have imagined. The2009–2010 Yearbook cases support this conclusion as well. [FN98] Also interesting was that a high number ofthe cases were heard in courts in New York state. Of the 2011 Yearbook cases 19 originated in New York state.[FN99] This finding was consistent with the cases *518 examined in the 2009–2010 Yearbooks as well (see Ap-pendix A). Specifically, the school district often prevailed and most of the cases were from New York. Despitethis seemingly limited liability, teachers and administrators continue to worry about negligence lawsuits.[FN100]

The examination of the Yearbook cases from 2009–2011 also brings into question whether teacher immunitylaws such as the Paul D. Coverdell Teacher Protection Act of 2001 (“Coverdell Act”) are necessary. [FN101]The Coverdell Act was included in the No Child Left Behind Act of 2001. [FN102] One of the purposes of thisfederal law is to protect teachers or other school officials if a student is injured while an employee is trying todiscipline the student. Specifically, under the Coverdell Act, school officials are immune to lawsuits if a studentis injured while an employee is attempting “to control, discipline, expel, or suspend a student or maintain orderor control in the classroom or school.” [FN103] The Coverdell Act exempts teachers from liability for harmcaused by an act or omission of the teacher if: (1) “the teacher was acting within the scope of his or her employ-ment;” (2) the teacher's actions “were carried out in accordance with Federal, state, and local laws... in further-ance of efforts to maintain order;” (3) if required, “the teacher was properly licensed;” and (4) the teacher's con-duct was not willful, criminal or constituted “gross negligence, reckless misconduct, or a conscious, flagrant in-difference to the rights or safety” of the student. [FN104]

Some groups have criticized the Coverdell Act as political posturing and unnecessary. For example, the Na-tional Education Association cautions teachers that the Coverdell Act “is so narrowly drawn and rife with excep-tions, that—in practical terms—it affords school employees almost no real protection from lawsuits.” [FN105]In other words, the Coverdell Act does not protect teachers from criminal charges or a wide array of other typesof negligence lawsuits involving students (e.g., injuries caused by playground accidents, injuries during a sci-ence class, injuries sustained on a school–sponsored field trip).



Thus, there is some skepticism about the effectiveness of this law. Eckes suggests that such laws are not ne-cessary because teachers are already protected when disciplining students as long as their conduct is consistentwith what a reasonable teacher would have done in the same situation. [FN106] *519 Others have posited thatthe law may backfire, leading teachers to think that they have been given broad immunity, while in reality theprotections are narrow. [FN107] Decker explains:

The Coverdell Act is a politically–motivated federal act that is narrowly construed and ultimately un-necessary because it provides a false sense of protection. Teachers already have protection through statelaw and often garnish legal support from unions or private liability insurance. [FN108]

Zirkel also criticizes the Coverdell Act as so full of limitations that the law is meaningless for teachers.[FN109]

On the other hand, advocates of the Coverdell Act and similar state immunity laws contend that it makes iteasier to defend teachers from frivolous lawsuits. More specifically, a judge will be more likely to dismiss a casenow that the law is in place. Steketee argues that state teacher protection laws, such as Indiana's law, may pre-vent school districts from settling cases before suits are filed to avoid a legal battle and give teachers a bettersense of protection. [FN110] She posits that “regardless of whether these Acts actually produce a measurable de-terrent effect (in terms of discouraging plaintiffs from bringing lawsuits), there is little doubt that they havedrawn considerable public attention to the challenges school officials face in administering discipline to stu-dents.” [FN111] She further argues that teacher protection acts may provide teachers with immunity in certaincircumstances, which will help them avoid unnecessary litigation. Specifically, a teacher who is sued after dis-ciplining a student could assert immunity under the applicable teacher protection act as an affirmative defense.[FN112] This defense could allow teachers to dispose of a lawsuit before trial or perhaps before the discoveryphase of a trial. [FN113] By disposing of claims earlier, teachers and school districts would be able to avoidsome of the costs and time associated with a lawsuit.

While teachers continue to worry about litigation, it is unclear if these laws offer any additional protections.Specifically, the laws were not applicable to the 2011 Yearbook cases discussed above because none of the casesconcerned student discipline and the Coverdell Act is only directed to personal injury discipline cases. In the2011 Yearbook negligence cases examined, the facts of the cases were much broader and none involved discip-line. They involved students slipping on wet staircases, tripping over volleyball nets, getting struck in the faceby hockey sticks, or being injured on the bus. These findings are consistent with one earlier study; Holben andZirkel found results along the same lines when they discovered that approximately *520 only one in 2000 edu-cators are sued for intervening or failing to intervene in a fight. [FN114]

Furthermore, when a teacher injures a student in the course of discipline, the plaintiffs do not always claimnegligence. Instead, parents might use alternative legal grounds to file lawsuits against injuries sustained duringdiscipline, such as intentional torts, constitutional violations, federal statutory violations, or even file criminalcharges. [FN115] For example, parents may claim that their children's constitutional rights were violated duringdiscipline involving seclusion or restraint. Students are to be free from unreasonable seizure under the FourthAmendment. [FN116] Additionally, students have rights under the Fourteenth Amendment [FN117] to bodily in-tegrity and to be free from government action that shocks the conscience. [FN118] Moreover, many of the im-proper discipline lawsuits appear to involve students with disabilities. Parents of these children typically filelawsuits under the federal legislation, such as Section 504 of the Rehabilitation Act of 1973 [FN119] and/or theIndividuals with Disabilities Education Act (IDEA). [FN120] The Coverdell Act would not limit these types oflawsuits.



Thus, it appears that the Coverdell Act does not cover many of the lawsuits that teachers actually experience.Even if the Coverdell Act was more broadly written, it would likely not provide any new protections beyondwhat the existing law already provides: a teacher who acts as a reasonably prudent teacher would not be foundnegligent under common law.

Even though there were only 21 reported court opinions in the 2011 Yearbook involving students filing neg-ligence claims for injuries in the classroom, on school grounds, coming to/from school, or on school–sponsoredfieldtrips, negligence is still an important area for preservice teachers, *521 teachers, and administrators to un-derstand. For example, there is no way to know how many negligence cases settled and were therefore not repor-ted in West's Education Law Reporter. Likewise, as noted many trial court opinions are not published. In orderto avoid litigation, it is necessary that school officials become familiar with the elements of negligence and thedefenses to negligence. If preservice teachers are properly trained during their preservice programs about whatconstitutes negligence, perhaps some of the lawsuits that do arise every year could be avoided. As most preser-vice programs do not include a legal issues course, [FN121] it is important that school leaders educate theirteaching staffs about this important area of law. [FN122]

*522 Appendix A

Cases from 2010 Yearbook of Education Law [FN1a]

Cases Ruling in Favor of the School District

B. v. Eden Cent Sch. Dist., 880 N.Y.S.2d 431 ¿245 Ed.Law Rep. ¿410ºº (N.Y. App. Div. 2009).

Barrera v. City of New York, 876 N.Y.S.2d 150 ¿243 Ed.Law Rep.. ¿432ºº (N.Y. App. Div. 2009).

Butler v. City of Gloversville, 885 N.Y.S.2d 245 ¿248 Ed.Law Rep. ¿788ºº (N.Y. App. Div. 2009).

Calcagno v. JFK Intermediate Sch., 877 N.Y.S.2d 455 ¿244 Ed.Law Rep. ¿263º º (N.Y. App. Div. 2009).

Carey v. Commack Union Free Sch. Dist. No. 10, 867 N.Y.S.2d 525, ¿238 Ed.Law Rep. ¿851ºº (N.Y. App.Div. 2008).

Doyle v. Binghamton City Sch. Dist., 874 N.Y.S.2d 607 ¿874 Ed.Law Rep. ¿ 607ºº (N.Y. App. Div. 2009).

Esponda v. City of New York, 878 N.Y.S.2d 330 ¿244 Ed.Law Rep. ¿280ºº (N.Y. App. Div. 2009).

Grandeau v. S. Colonie Cent. Sch. Dist., 881 N.Y.S.2d 549 ¿246 Ed.Law Rep. ¿334 ºº (N.Y. App. Div.2009).

Gray v. South Colonie Cent. Sch. Dist., 883 N.Y.S.2d 647 ¿247 Ed.Law Rep. ¿421ºº (N.Y. App. Div. 2009).

Macniven v. E. Hampton Union Free Sch. Dist., 878 N.Y.S.2d 449 ¿244 Ed.Law Rep. ¿289ºº (N.Y. App.Div. 2009).

Mason v. Monroe City Sch. Bd, 996 So.2d 377 ¿240 Ed.Law Rep. ¿469ºº (La. Ct. App. 2008).

Mata v. Huntington Union Free Sch. Dist., 871 N.Y.S.2d 194 ¿240 Ed Law Rep. ¿843ºº (N.Y. App. Div.



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2008).

Molina v. Conklin, 871 N.Y.S.2d 230 ¿240 Ed.Law Rep. ¿852ºº (N.Y. App. Div. 2008).

Paragas v. Comsewogue Union Free Sch. Dist., 885 N.Y.S.2d 128 ¿248 Ed.Law Rep. ¿785ºº (N.Y. App. Div.2009).

*523 Ramirez v. Glendale Union High Sch. Dist. No. 205, 319 Fed.Appx. 683 ¿245 Ed.Law Rep. ¿666ºº (9thCir. 2009).

Robinson v. Jefferson Parish Sch. Bd., 9 So.3d 1035 ¿246 Ed.Law Rep. ¿497º º (La. App. 2009).

Shannea M. v. City of New York, 886 N.Y.S.2d 483 ¿249 Ed.Law Rep. ¿833ºº (N.Y. App. Div. 2009).

Smith v. Roman Catholic Church of Archdiocese of New Orleans, 995 So.2d 1257 ¿239 Ed. Law Rep. ¿784ºº (La. App. 2008).

Teodoro v. Longwood Cent. Sch. Dist., 881 N.Y.S.2d 468 ¿246 Ed.Law Rep. ¿ 328ºº (N.Y. App. Div. 2009).

Troiani v. White Plains City Sch. Dist., 882 N.Y.S.2d 519 ¿246 Ed.Law Rep. ¿940ºº (N.Y. App. Div. 2009).

Cases Ruling in Favor of the Student

M. v. Avoyelles Parish Sch. Bd., 7 So.3d 105 ¿244 Ed.Law Rep. ¿849ºº (La. Ct. App. 2009).

S.J. v. Lafayette Parish Sch. Bd., 16 So.3d 615 ¿248 Ed.Law Rep. ¿993ºº (3d Cir. 2009).

Webb v. Clark County Sch. Dist., 218 P.3d 1239 ¿250 Ed.Law Rep. ¿471ºº (Nev. 2009).

Cases that Remain Undecided

Coleman v. St. Tammany Parish Sch. Bd., 13 So.3d 644 ¿247 Ed.Law Rep. ¿ 1031ºº (La. App. Cir. 2009).

Thomas v. Hempstead Union Free Sch. Dist., 868 N.Y.S.2d 142 ¿238 Ed.Law Rep. ¿866ºº (N.Y. App. Div.2008).

Cases from 2009 Yearbook of Education Law

Cases Ruling in Favor of the School District

Cerna v. City of Oakland, 75 Cal.Rptr.3d 168 ¿231 Ed.Law Rep. ¿389ºº (Cal. Ct. App. 2007).

Coulter v. Catawba Co. Bd. of Educ., 657 S.E.2d 428 ¿230 Ed.Law Rep. ¿77º º (N.C. Ct. App. 2008).

DiGose v. Bellmore-Merrick Cent. High Sch. Dist., 855 N.Y.S.2d 199 ¿231 EdLaw Rep. ¿842ºº (N.Y. App.Div. 2008).

*524 Dwyer v. Diocese of Rockville Ctr., 845 N.Y.S.2d 126 ¿226 Ed Law Rep. ¿221 ºº (N.Y. App. Div.2007).




















Gaspard v. Bd. of Educ. of New York, 850 N.Y.S.2d 550 ¿229 Ed.Law Rep. ¿ 210ºº (N.Y. App. Div. 2008).

Gonzalez-Jarin v. New York City Dept. of Educ., 855 N.Y.S.2d 87 ¿231 Ed.Law Rep. ¿840ºº (N.Y. App.Div. 2008).

R.S. ex rel. S. v. Ridgefield Bd. of Educ., 534 F.Supp.2d 284 ¿229 Ed.Law Rep. ¿655ºº (D. Conn. 2008).

Hallock v. Riverhead Cent. Sch. Dist., 861 N.Y.S.2d 753 ¿234 Ed. Law Rep. ¿952ºº (N.Y. App. Div. 2008).

Jachetta v. Warden Joint Consol. Sch. Dist., 176 P.3d 545 ¿229 Ed.Law Rep. ¿264ºº (Wash. Ct. App. 2008).

Kazanjian v. Sch. Bd. of Palm Beach Co., 967 So.2d 259 ¿226 Ed.Law Rep. ¿ 522ºº (Fla. Dist. Ct. App.2007).

Knightner v. William Floyd Union Free Sch. Dist., 857 N.Y.S.2d 726 ¿232 Ed.Law Rep. ¿346ºº (App. Div.2008).

Krathen v. Sch. Bd. of Monroe County, 972 So.2d 887 ¿229 Ed.Law Rep. ¿297º º (Fla. Dist. Ct. App. 2007).

MacCormack v. Hudson City Sch. Dist. Bd. of Educ., 856 N.Y.S.2d 721 ¿232 Ed.Law Rep. ¿297ºº (App.Div. 2008).

McCollin v. Roman Catholic Archdiocese of New York, 846 N.Y.S.2d 158 ¿226 Ed.Law Rep. ¿972ºº (N.Y.App. Div. 2007).

Milbrand v. Kenmore-Town of Tonawanda Union Free Sch. Dist., 853 N.Y.S.2d 809 ¿230 Ed.Law Rep.¿399ºº (N.Y. App. Div. 2008).

Miller v. Kings Park Cent. Sch. Dist., 863 N.Y.S.2d 232 ¿235 Ed.Law Rep. ¿ 1089ºº (N.Y. App. Div. 2008).

Noble v. Bronxville Union Free Sch. Dist., 845 N.Y.S.2d 403 ¿226 Ed.Law Rep. ¿223ºº (App. Div. 2007).

Ribaudo v. La Salle Inst., 846 N.Y.S.2d 209 ¿226 Ed.Law Rep. ¿974ºº (N.Y. App. Div. 2007).

Rose ex rel. Rose v. Onteora Cent. Sch. Dist., 861 N.Y.S.2d 442 ¿234 Ed.Law Rep. ¿255ºº (N.Y. App. Div.2008).

Strnad v. Floral Park-Bellerose Union Free Sch. Dist., 855 N.Y.S.2d 609 ¿ 231 Ed.Law Rep. ¿872ºº (N.Y.App. Div. 2008).

*525 Vernali v. Harrison Cent. Sch. Dist., 857 N.Y.S.2d 699 ¿232 Ed.Law Rep. ¿343ºº (N.Y. App. Div.2008).

Ware ex rel. Ware v. ANW Special Educ. Co-op., 180 P.3d 610 ¿230 Ed.Law Rep. ¿803ºº (Kan. Ct. App.2008).

Williams v. Hempstead Sch. Dist., 850 N.Y.S.2d 459 ¿229 Ed.Law Rep. ¿208º º (N.Y. App. Div. 2007).

Cases Ruling in Favor of the Student





























Hilts v. Bd. of Educ. of Gloversville Enlarged Sch. Dist., 857 N.Y.S.2d 292 ¿232 Ed.Law Rep. ¿304ºº (N.Y.App. Div. 2008).

Johnson v. Ken-Ton Union Free Sch. Dist., 850 N.Y.S.2d 813 ¿229 Ed.Law Rep. ¿223ºº (N.Y. App. Div.2008).

Cases that Remain Undecided

Garman v. E. Rochester Sch. Dist., 850 N.Y.S.2d 306 ¿228 Ed.Law Rep. ¿895º º (N.Y. App. Div. 2007).

Gary Cmty. Sch. Corp. v. Boyd, 890 N.E.2d 794 ¿234 Ed.Law Rep. ¿265 ºº (Ind. Ct. App. 2008).

Murphy v. Fairport Cent. Sch. Dist., 850 N.Y.S.2d 752 ¿229 Ed.Law Rep. ¿ 217ºº (N.Y. App. Div. 2008).

[FNa1] The views expressed are those of the authors and do not necessarily reflect the views of the publisher.Cite as 275 Ed.Law Rep. [505] (March 15, 2012).

[FNaa1] Suzanne E. Eckes is an associate professor in the Department of Educational Leadership and PolicyStudies at Indiana University. Janet R. Decker is an assistant professor in the Educational Leadership Programat University of Cincinnati. Emily Richardson is an attorney and teaches school law at Indiana University.

[FN1a] In addition to the 2009-2011 Yearbook chapters covered in this article, some of the authors of this articlealso wrote the Tort chapter in the Yearbook from 2003-2008. The same trends were found in these earlierchapters as well. Namely, school districts are likely to prevail and most cases originate in New York.

[FN1]. See Jessica Portner, Fearful Teachers Buy Insurance Against Liability, EDUC. WEEK, Mar. 29, 2000, at1.

[FN2]. Suzanne E. Eckes & Jesulon Gibbs, Student Injury and Public Schools, in THE PRINCIPAL'S LEGALHANDBOOK 340 (Kenneth E. Lane et al. eds., 4th ed. 2008); see also David Schimmel & Matthew Militello,Legal Literacy for Teachers: A Neglected Responsibility, 77 HARV. EDUC. REV. 257 (2007); Public Agenda,Teaching Interrupted: Do Discipline Policies in Today's Schools Foster the Common Good? (2004), http: //common good.org /assets /attachments /22. pdf.

[FN3]. See, e.g., Suzanne E. Eckes & Janet Decker, Tort Law and Public Schools, in THE YEARBOOK OFEDUCATION LAW 143 (Charles Russo ed., 2010); see also Susan D. Looney, Education and the Legal System,in TORTS AND SCHOOL LIABILITY 23, 44 (2004); Perry Zirkel, The Coverdell Teacher Protection Act: Im-munization or Illusion?, 179 Ed.Law Rep. [547] (2003); Vinti Singh, Trumbull Student Suing District for HeadInjury Suffered in Gym Class, CONN. POST, July 18, 2011, available at http: //www.ctpost. com/local /article /Trumbull –student –suing –district –for– head– injury –1470809 .php.

[FN4]. See Schimmel & Militello, supra note 2; see also Perry A. Zirkel & John H. Clark, School NegligenceCase Law Trends, 32 S. ILL. U.L.J. 345 (2007); Tina M. Chitwood Smith, A Comprehensive Analysis of Judi-cial Response to Negligence Cases in the Elementary School, 122–30 (2005) (unpublished dissertation, Uni-versity of Louisville).

[FN5]. Todd DeMitchell, A Duty Owed: Tort Liability and the Perceptions of Public School Principals, 201











Ed.Law Rep. [1] (2005).

[FN6]. THOMAS R. MCDANIEL, SCHOOL LAW FOR SOUTH CAROLINA ADMINISTRATORS 101(2007).

[FN7]. See generally Peter Maher, Kelly Price, & Perry A. Zirkel, Governmental and Official Immunity forSchool Districts and Their Employees, 19 KAN. J.L. & PUB. POL'Y (2010).

[FN8]. DeMitchell, supra note 5, at 2.

[FN9]. See CHARLES J. RUSSO, REUTTER'S THE LAW OF PUBLIC EDUCATION (5th ed. 2004).

[FN10]. See Morris v. Ortiz, 437 P.2d 652 (Ariz. 1968).

[FN11]. Nash v. Rapides Parish Sch. Bd., 188 So.2d 508, 510 (La. Ct. App. 1966).

[FN12]. Bratton v. Calkins, 870 P.2d 981 [90 Ed.Law Rep. [449]] (Wash. Ct. App. 1994).

[FN13]. Eckes & Decker, supra note 3.

[FN14]. Bill Evans & Suzanne Eckes, Tort Law and Public Schools, in THE YEARBOOK OF EDUCATIONLAW 142 (Charles Russo ed., 2006).

[FN15]. STEPHEN B. THOMAS ET AL., PUBLIC SCHOOL LAW: TEACHERS' AND STUDENTS' RIGHTS102, 240 (6th ed. 2009).

[FN16]. Esponda v. City of New York, 878 N.Y.S.2d 330 [244 Ed.Law Rep. [280]] (N.Y. App. Div. 2009).

[FN17]. Id.

[FN18]. Id. at 331–32.

[FN19]. Id. at 333.

[FN20]. See Berman v. Phila. Bd. of Educ., 456 A.2d 545 [9 Ed.Law Rep. [575]] (Pa. 1983) (finding that an el-even–year–old student who was injured from a hockey stick after the school failed to provide gear could not befound negligent); see also Winkinson v. Hartford, 411 So.2d 22 [3 Ed.Law Rep. [454]] (La. 1982) (finding thatthe age of the student who was injured in a school gymnasium must be considered in determining negligence).

[FN21]. See, e.g., Milledge v. Standard Mattress Co., 238 A.2d 602, 603 (Conn. Super. Ct. 1968) (a Connecticutcourt suggested that a child of three years and ten months could be capable of contributory negligence and re-manded the case to the trial court for determination of the issue); Donald Paul Duffala, Modern Trends as toContributory Negligence of Children, 32 A.L.R.4th 56, at § 5 (1986).

[FN22]. L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136 [143 Ed.Law Rep. [1138]] (Miss. 1999).

[FN23]. Thomas v. Hempstead Union Free Sch. Dist., 868 N.Y.S.2d 142 [238 Ed.Law Rep. [866]] (N.Y. App.Div. 2008).

[FN24]. Id. at 143.





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[FN25]. Teodoro v. Longwood Cent. Sch. Dist., 881 N.Y.S.2d 468 [246 Ed.Law Rep. [328]] (N.Y. App. Div.2009).

[FN26]. Id.

[FN27]. David G. Owen, The Five Elements of Negligence, 35 HOFSTRA L. REV. 1680 (2007).

[FN28]. Id.

[FN29]. Eckes & Gibbs, supra note 2.

[FN30]. Owen, supra note 27 at 1680–82.

[FN31]. Id. at 1681.

[FN32]. Id. at 1682.

[FN33]. Doyle v. Binghamton City Sch. Dist., 874 N.Y.S.2d 607 [242 Ed.Law Rep. [328]] (N.Y. App. Div.2009).

[FN34]. Heather Sanders, School Liability: The Danger of Mandatory Physical Education Classes, 37 J.L. &EDUC. 443 (2008); see, e.g., ILL. COMP. STAT. 1012–105 (2009).

[FN35]. See Maher et al., supra note 7.

[FN36]. 78 C.J.S. Schools and School Districts § 650 (2011).

[FN37]. Id.

[FN38]. Id.

[FN39]. THOMAS ET AL. supra note 15.

[FN40]. PROSSER AND KEATON ON TORTS 131, 481 (W. Page Keeton ed., 5th ed. 1984) (premier hand-book discussing tort law).

[FN41]. See Jean W. Sexton, Tort Law—Assumption of Risk and Pennsylvania's Comparative Negligence Stat-ute—Howell v. Clyde, 67 TEMP. L. REV. 903, 922 (1994).

[FN42]. See PROSSER & KEETON ON TORTS, supra note 40, at 481.

[FN43]. See, e.g., Mayer v. Gulmi, 883 N.Y.S.2d 579, 580 [247 Ed.Law Rep. [419]] (N.Y. App. Div. 2009) (astudent sued another student for injuries that he sustained during a hockey game in gym class. The court foundthat the injured student had assumed the risk of his injury because “[a] participant in a sport assumes all com-monly appreciated risks inherent in that sport but does not assume the risks of reckless or intentional conduct.”).

[FN44]. Some of the authors of this article also wrote the “Tort” chapter of the Yearbook of Education Law from2009–2011. See, e.g., Eckes & Decker, supra note 3. As noted, the Yearbook's cases were those cases includedin West's Education Law Reporter that were classified as “Torts.”


















[FN45]. Because the authors only included cases from the Yearbook, some cases that involved torts, but wereclassified under another category (e.g., athletics or security) in West's Education Law Reporter were not in-cluded (E.g., Lizardo v. Bd. of Educ., 908 N.Y.S.2d 395 [260 Ed. Law Rep. [904]] (N.Y. App. Div. 2010)) (ateacher's alleged negligent supervision during a kickball game was not the proximate cause of the student's injur-ies); LaPorte Cmty. Sch. Corp. v. Rosales, 936 N.E.2d 281 [261 Ed. Law Rep. [744]] (Ind. Ct. App. 2010)(finding issue about whether school breached its duty when child died from choking was a question for the jury).

[FN46]. Cases that focused on tangential issues, such as subject matter jurisdiction and notice of claim were notincluded because they did not concentrate on school official liability for student injury. Also, cases involvingsexual abuse cases involving a teacher as the perpetrator were not included.

[FN47]. The cases published in the 2011 Yearbook may have included cases from 2009 or 2010 because theYearbook reports the cases from the previous year. Janet Decker, Torts, in THE YEARBOOK OF EDUCA-TION LAW, 123 (Charles Russo, ed., 2011).

[FN48]. Odekirk v. Bellmore–Merrick Cent. Sch. Dist., 895 N.Y.S.2d 184 [253 Ed.Law Rep. [840]] (N.Y. App.Div. 2010).

[FN49]. Id. at 185.

[FN50]. Spaulding v. Chenago Valley Cent. Sch. Dist., 890 N.Y.S.2d 162 [251 Ed.Law Rep. [865]] (N.Y. App.Div. 2009).

[FN51]. Id. at 164.

[FN52]. Bramswig v. Pleasantville Middle Sch., 891 N.Y.S.2d 160 [251 Ed.Law. Rep. [890]] (N.Y. App. Div.2009).

[FN53]. Id. at 161.

[FN54]. Tanenbaum v. Minnesauke Elementary Sch., 901 N.Y.S.2d 102 [256 Ed.Law Rep. [902]] (N.Y. App.Div. 2010).

[FN55]. Id. at 103.

[FN56]. Wagner v. Oneonta Sch. Dist., 892 N.Y.S.2d 250 [252 Ed.Law Rep. [446]] (N.Y. App. Div. 2009).

[FN57]. Id. at 252.

[FN58]. Naulo v. New York City Bd. of Educ., 896 N.Y.S.2d 155 [254 Ed.Law Rep. [367]] (N.Y. App. Div.2010).

[FN59]. Id. at 156.

[FN60]. Id.

[FN61]. Musachio v. Smithtown Cent. Sch. Dist., 892 N.Y.S.2d 123 [252 Ed.Law Rep. [440]] (N.Y. App. Div.2009).







































[FN62]. Id. at 125.

[FN63]. Acunia ex rel. Salgado v. N.Y. City Dep't of Educ., 891 N.Y.S.2d 70 [251 Ed.Law Rep. [888]] (N.Y.App. Div. 2009).

[FN64]. Id. at 71.

[FN65]. Daefler v. Briarcliff Manor Union Free Sch. Dist., 898 N.Y.S.2d 263 [255 Ed.Law Rep. [945]] (N.Y.App. Div. 2010).

[FN66]. Id. at 264.

[FN67]. Id.

[FN68]. Giulini v. New York City Dept. of Educ., 895 N.Y.S.2d 453 [253 Ed.Law Rep. [850]] (N.Y. App. Div.2010).

[FN69]. Id. at 455–56.

[FN70]. Id.

[FN71]. Boever v. Special Sch. Dist. of St. Louis Co., 296 S.W.3d 487 [250 Ed.Law Rep. [817]] (Mo. Ct. App.2009).

[FN72]. Id. at 494.

[FN73]. Hansen v. Bath & Tennis Marina Corp., 900 N.Y.S.2d 365 [256 Ed.Law. Rep. [349]] (N.Y. APP. DIV.2010).

[FN74]. Id. at 367.

[FN75]. Id.

[FN76]. Andrew T.B. v. Brewster Cent. Sch. Dist., 889 N.Y.S.2d 240 [251 Ed.Law Rep. [411]] (N.Y. App. Div.2009).

[FN77]. Id. at 242.

[FN78]. Id.

[FN79]. Brandy B. v. Eden Cent. Sch. Dist., 907 N.Y.S.2d 735 [260 Ed.Law Rep. [395]] (N.Y. 2010).

[FN80]. See id. at 738.

[FN81]. Id.

[FN82]. Miloscia v. New York City Bd. of Educ., 896 N.Y.S.2d 109 [254 Ed.Law Rep. [364]] (N.Y. APP. DIV.2010).

[FN83]. Id. at 110.











































[FN84]. Dalton v. Memminger, 889 N.Y.S.2d 785 [251 Ed.Law Rep. [422]] (N.Y. App. Div. 2009).

[FN85]. Id. at 786.

[FN86]. Pistolese v. William Floyd Union Free Dist., 895 N.Y.S.2d 125 [253 Ed.Law Rep. [834]] (N.Y. App.Div. 2010).

[FN87]. Id. at 126.

[FN88]. Heuser ex rel. Jacobs v. Cmty. Ins. Corp., 774 N.W.2d 653, 657 [250 Ed.Law Rep. [766]] (Wis. Ct.App. 2009).

[FN89]. Id. at 655–56.

[FN90]. Id. at 662.

[FN91]. Carson v. Baldwin Union Free Sch. Dist., 910 N.Y.S.2d 117 [261 Ed.Law Rep. [730]] (N.Y. App. Div.2010).

[FN92]. Id. at 118.

[FN93]. Trupia ex rel. Trupia v. Lake George Cent. Sch. Dist., 901 N.Y.S.2d 127 [257 Ed.Law Rep. [812]](N.Y. 2010).

[FN94]. Id. at 128.

[FN95]. Armellino v. Thomase, 899 N.Y.S.2d 339 [255 Ed.Law Rep. [958]] (N.Y. App. Div. 2010).

[FN96]. Id. at 341.

[FN97]. Id.

[FN98]. In the cases detailed in the 2009 Yearbook, school districts prevailed in 23 instances, where studentsonly prevail twice and three cases were unresolved. Similarly in the 2010 Yearbook, students only prevailed fourtimes with two unresolved cases; school districts prevailed in 20 instances.

[FN99]. It was beyond the scope of this paper to determine why New York had a much higher number of courtopinions than other states. One explanation might be that New York's immunity laws may be different than otherimmunity laws. Specifically, New York might permit lawsuits against public schools easier than other states'laws. According to one New York attorney “New York law distinguishes between the State's traditional govern-mental role (such as providing police protection) and non–traditional roles the State has assumed over time, suchas owning and running a university. Generally, the State can raise the governmental immunity defense onlyagainst tort lawsuits for the former, not the latter.” Mike Bersani, Central New York Injury Lawyer DiscussesNew York Statute of Limitations in Child Sexual Abuse Cases, Central New York Injury Lawyer, Nov. 13, 2011,http: //www.central newyork injury lawyer.com/ negligent –supervision /.

[FN100]. See Diane Holben & Perry Zirkel, Empirical Trends in Teacher Tort Liability for Student Fights, 40J.L. & EDUC. 151 (2011); Perry A. Zirkel, Paralyzing Fear? Avoiding Distorted Assessments of the Effect ofLaw on Education, 35 J.L. & EDUC. 461 (2006).







































[FN101]. See 20 U.S.C. §§ 6731—6738 (2002).

[FN102]. Id.

[FN103]. 20 U.S.C. § 6736(a).

[FN104]. Id.

[FN105]. National Educ. Ass'n, The Truth about the Teacher Protection Act, http: //www. nea–nm. org/ issues /ESEA /TPA. htm.

[FN106]. Daniel Robison, School Officials Question Need for Teacher Lawsuit Shield, INDIANA PUBLIC ME-DIA, May 22, 2009, http: //indiana public media. org/news /school –officials –question –need –for –teacher–shield .

[FN107]. Janet R. Decker, Are State and Federal Teacher Protection Acts Needed to Protect Teachers fromLawsuits When Disciplining Students? Counterpoint, in SCHOOL DISCIPLINE AND SAFETY (C. Russo & S.Eckes eds., forthcoming 2011).

[FN108]. Id.

[FN109]. Perry Zirkel, The Coverdell Teacher Protection Act: Immunization or Illusion?, 179 Ed.Law Rep.[547] (2003).

[FN110]. Amy Steketee, Are State and Federal Teacher Protection Acts Needed to Protect Teachers from Law-suits When Disciplining Students? Point, in SCHOOL DISCIPLINE AND SAFETY (C. Russo & S. Eckes eds.,forthcoming 2011); see also IND. CODE §§ 34–13–3 et seq.(2010).

[FN111]. Id.

[FN112]. Id.

[FN113]. Id.

[FN114]. Holben & Zirkel, supra note 100.

[FN115]. See, e.g., Vicky M. v. Ne. Educ. Intermediate Unit, 689 F.Supp.2d 721 [256 Ed.Law Rep. [606]] (M.D.Pa. 2009); King v. Pioneer Reg'l Educ. Serv. Agency, 688 S.E.2d 7 [252 Ed.Law Rep. [985]] (Ga. App. 2009).

[FN116]. U.S. CONST. AMEND. IV (1791).

[FN117]. U.S. CONST. AMEND. XIV (1868).

[FN118]. See C.N. v. Willmar Pub. Schs., 591 F.3d 624 [252 Ed.Law Rep. [106]] (8th Cir. 2010); H.H. v. Moffett, 335 Fed.Appx. 306 [250 Ed.Law Rep. [79]] (4th Cir. 2009) (unpublished op.); Couture v. Bd. of Educ., 535F.3d 1243, 1250–51 [235 Ed.Law Rep. [721]] (10th Cir. 2008); Preschooler II v. Clark County Sch. Bd. of Trs.,479 F.3d 1175 [217 Ed.Law Rep. [51]] (9th Cir. 2007); Flores v. Sch. Bd. of DeSoto Parrish, 116 Fed.Appx. 504[194 Ed.Law Rep. [137]] (5th Cir. 2004) (unpublished op.); Heidemann v. Rother, 84 F.3d 1021, 1030 (8th Cir.1996); G.C. v. Sch. Bd. of Seminole County, 639 F.Supp.2d 1295 [249 Ed.Law Rep. [204]] (M.D. Fla. 2009);



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Rasmus v. Arizona, 939 F.Supp. 709 [113 Ed.Law Rep. [734]] (D. Az. 1996); King v. Pioneer Reg'l Educ. Serv.Agency, 688 S.E.2d 7 [252 Ed.Law Rep. [985]] (Ga. Ct. App. 2009).

[FN119]. Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794(a) (2006).

[FN120]. Individuals with Disabilities Education Act, 20 U.S.C.A. §§ 1400–82 (2008). See, e.g., T.W. v. Sch. Bd., 610 F.3d 588 [258 Ed.Law Rep. [481]] (11th Cir. 2010); Melissa S. v. Sch. Dist., 183 Fed.Appx. 184 [212Ed.Law Rep. [639]] (3d Cir. 2006) (unpublished op.); Vicky M. v. Ne. Educ. Intermediate Unit, 689 F.Supp.2d721 [256 Ed.Law Rep. [606]] (M.D. Pa. 2009); Colon ex rel. Disen–Colon v. Colonial Intermediate Unit 20, 443F.Supp.2d 659, 670 [212 Ed.Law Rep. [674]] (M.D. Pa. 2006); Alex G. v. Bd. of Tr., 387 F.Supp.2d 1119, 1125[203 Ed.Law Rep. [253]] (E.D. Cal. 2005); see also Allison Fetter–Harrot, Michelle Gough, & Janet Decker,Has the Time Come for Seclusion and Restrain Legislation?, Presentation for the annual meeting of the Americ-an Education Research Association, New Orleans, LA (2010).

[FN121]. Suzanne E. Eckes, Significant Legal Issues for Inclusion in Preservice Teacher Preparation Programs,30 ACTION IN TEACHER EDUC. 2, 25–35 (2008); see also David E. Gullatt & John R. Tollett, EducationalLaw: A Requisite Course for Preservice and Inservice Teacher Education Programs, 48 TEACHER EDUC. 129(1997).

[FN122]. See DAVID SCHIMMEL, SUZANNE E. ECKES, & MATTHEW MILITELLO, PRINCIPALSTEACHING THE LAW: 10 LEGAL LESSONS YOUR TEACHERS MUST KNOW (2010).275 Ed. Law Rep. 505

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Eckes, Decker \u0026 Richardson 2012 Trends in Court

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