Risks and Legal Concerns

1
Risks and Legal Concerns

• Chapter 14
• Carolyn Masterson

2
Reasons for Risk and Liability

• Environment
• Litigious Society
• Instructors MUST know what to do!
• Instructors MUST know what not to do!

3
Who Dictates Educational Law?

• Four sources that dictate law
• Common Law laws dictated by precedents
• Constitution of the United States
• The State Constitution
• Statutory Law- laws written by federal, state,
  and local legislation.
• State Law has jurisdiction over public education.
• State Department of Education- drafts and
  maintains educational policy
• New Jerseys Through and Efficient Law

4
Negligence

• Negligence is when a person failures to act in a
  reasonable and prudent manner and someone is
  injured.
• Common Law vs. Criminal Law
• Tort Law- civil wrong against a person
• To injure physically, damage a persons
  reputation, damage their property)
• Assault, battery, libel, trespassing, etc.

5
Legal Terms In a Court of Law

• Law Suit person petitions the court due to a
  tort (a negligence)
• Plaintiff- person who files the complaint
• Defendant- the person with whom the action is
  brought against.
• Verdict- decision of the court
• Appealed- Case sent to a higher court (appellate
  court).
• Appellant- person who files the appeal.
• Appellee- the other individual
• Res judicata- the court has judged

6
4 Elements in order for Negligence To Exist

• A Duty- relationship of people involved and what
  they are supposed to be doing (in absent of the
  parents).
• Breach of duty-Duty is not followed
  (protect students and players from reasonably
  foreseeable risks of harm).
• Damages or Injury- An injury must have occurred
  in order to recover for damages.
• Proximate Cause- the act (Breach of Duty) must
  directly or indirectly contributed to the injury.

7
Specific Types of Negligence

• Intentional Negligence or Malfeasance- purposeful
  commits an act that is unlawful and wrongful (Act
  of commission) (Can be a crime)
• Reckless misconduct intended to commit the act
  but did not intend to harm the individual
• Misfeasance- follows the procedures but does not
  live up to the standards of the profession.
• Nonfeasance- Knows the procedure but fails to
  carry out the duty required by the procedure (act
  of omission).
• Unintentional negligence- Has no intent to commit
  the act and no intent to harm the individual.
• Contributory negligence- in some way both the
  student and teacher are responsible for what has
  happened.

8
Avoiding Negligence

• The instructor is responsible for what happens.
  Therefore, the teacher must supervise what
  students do. A teacher can not delegate
  responsibilities to minor students.
• Instructors provide proper instruction according
  to age, maturity, and ability levels.
• Instructors must be qualified and trained for
  what they do.

9
Avoiding Negligence

• Instructors must make sure that the room, gym and
  equipment is safe (product liability).
• Instructors must know basic safety and first aid
  procedures, especially for emergency medical
  care. This includes what is done and the records
  that document the accident.
• Managers and Supervisors must be aware of
  inherent risks involved in transportation of
  students. This includes school owned, personnel
  owned, and outside school owned transportation.

10
Defense Against Negligence

• Call your insurance company and keep good
  records.
• Lack of Breach of Duty and/or Proximate Cause- In
  fact, the teacher, manager, coach, did not commit
  breach of duty.
• Contributory Negligence- Along with the
  instructor, the student or person injured
  contributed or caused of his/her own injury.
• Act of God- lightning strikes, etc.
• Government Immunity- The king can do no wrong
  concept. Depends on societys trends and thoughts
  of what is wrong.
• Assumption of risk- The fact that the person is
  aware of a risk caused by the potential
  negligence of another and yet, the person
  proceeds to take part in the activity voluntarily.

11
Record Keeping

• Take accident reports seriously.
• Permission Slips and Consent Forms
• Waiver Forms Parents can not waiver the rights
  of a minor.
• Consent Forms- Protection against claims of
  invasion of a persons right to privacy.
• Contracts- Document an agreement between two
  parties that is legally binding. Must have
  everything in them in order to be covered in a
  court of law.
• Memberships in Fitness Centers
• Employment Contracts
• A party can still be sued for negligence in spite
  of a permission slip, waiver form, consent form
  and contract.

12
Types of Insurance

• Liability Insurance- Does not protect a person
  from being sued. It only protects the personal
  assets of a person in event that legal action is
  taken.
• Property Insurance-covers school owned, or
  organization-owned equipment and facilities.
• Medical or Accident Insurance
• Door-to-Door Coverage- limits coverage to
  activities while going to, during and returning
  from school.
• Full Coverage- all activities during the school
  year.

13
Student Rights

• A Right- Power or privilege belonging to
  individuals as a matter of law
• 1st Amendment - Freedom of Speech, 14th- Right to
  be treated fairly and not denied privilege of
  life, liberty and property without out due
  process, not be denied the equal protection of
  the law.)

14
Student vs. Instructor Rights

• Does the Instructor have authority in the
  situation?
• Did the teacher follow appropriate process in
  implementing the sanction?
• Was the action taken justified and related to a
  rule that was broken.
• Was the student given prior notice of the penalty
  for breaking the rules.
• Was the student deprived of his/her rights?
• Title IX of the Education Amendment of 1972, P.L.
  94-142 (Gender Equity Law)
• Public Law 94-142, Education for All Handicapped
  People Act (education in the least restrictive
  environment)
• Second 504 of the Rehabilitation Act of 1973 (no
  person shall be denied the benefit of, or be
  subjected to discrimination under any program or
  activity receiving federally funded assistance.