Risk Management: Creating a Safe Environment

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Risk ManagementCreating a Safe Environment
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What is Risk Management?

• Risk management is a coordinated, effective,
  pre-response and post-response to a schools
  districts liability exposures developed through
  planning, organizing, directing, and monitoring a
  districts activities and assets
• Risk management is the process of minimizing
  accidental loss by anticipating and preventing
  the occurrence of unplanned events
• Ingredients for risk management Authority,
  Accountability, Responsibility, and Training
  (AART)

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• Principles of in loco parentis
• Definite responsibility to the school for the
  welfare of each student it serves in the absence
  of the students parent or guardian

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Components of Risk Management

• Risk identification
• Risk assessment
• Risk Control

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Why do we need risk management in schools?

• It is not managerially possible for schools to
  completely eliminate risks nor fiscally prudent
  to insure potential risk
• Schools cannot avoid accountability for its
  actions or inactions
• A well-planned, active program of risk
  anticipation and prevention is more preferable (a
  pro-active approach)

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What does it include?

• Student and staff safety
• Health
• Child abuse/abduction, drug testing, drug
  testing and student athletes, drug testing and
  employees, students/employees with Aids
• Chemical safety
• Environmental affairs
• Property protection
• Contingency planning
• Security

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• Transportation
• Third party liability
• Contractual liability

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Implications for Risk Management

• Accidents, incidents, or transgressions are
  organizational managerial problems, not people
  problems. They are often dealt with ex post
  facto rather than through active program of risk
  anticipation and prevention
• Insurance should be thought of only as financial
  protection for unexpected failure in risk
  management programs, not as the sole remedy for
  all accidental loss
• Risk factors diminish with the expansion of the
  practice of prevention law

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• The lower the knowledge of legal procedures and
  the practice of judgment and foreseeability is,
  the higher the incidence of liability,
  environmental, and personnel loss
• Effective risk management requires effective
  leadership

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Due Process

• There are two kinds of due process
• Procedural due process
• Substantive due process
• Procedural due process
• It entails fair warning and fair hearing
• Fair warning A person must be aware of the
  rules to follow, or behavior that must be
  exhibited, and the potential penalties for
  violation

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• Fair hearing
• The individual must be given written statement
  of the charges and the nature of the evidence
• The individual must be informed of certain
  procedural rights
• Adequate time must be provided to prepare a
  defence
• There must be an opportunity for a formal hearing

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• Substantive due process
• It is concerned with the basic legality of a
  legislative enactment
• Guideline to ensure substantive due process
• Legality
• Sufficient specificity
• Reason and sensibleness
• Adequate dissemination
• Appropriate penalities

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Tort

• Tort is an actionable wrong, exclusive of a
  breach of contract, that the law will recognize
  and set right. A tort is a legal wrong against
  the person, property, or reputation of another
• Classification of tort
• The direct invasion of some legal right of the
  individual (e.g. invasion of privacy)
• The infraction of some public duty by which
  special damage accrues to the individual (e,g,
  denial of constitutional right)
• The violation of some private obligation by
  which damage accrues to the individual (e.g.
  negligence)
• Negligence is the primary basis of tort liability
  suits filed against school districts

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Reasonable/Prudent Person

• Negligence is doing something that a reasonably
  prudent person would not have done, or failing to
  do something that a reasonably prudent person
  would have done when confronted by like or
  similar circumstances
• Reasonable/prudent person
• The defendant is not identified with an ordinary
  individual who might occasionally do unreasonable
  things, instead, he/she is identified as a
  prudent and careful person who is always up to
  the standard

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Duty and Standard of Care

• Duty is an obligation that derives from the
  special relationship between parties such as that
  between an employee and a student, the
  district/government and an employee, or the
  district and a patron.
• Standard of care is relative to the need and the
  occasion, what is proper under one circumstance
  may be negligent under another.

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• The standard of care imposed upon school
  personnel in carrying out this duty to supervise
  is identical to that required in the performance
  of their other duties. This uniform standard to
  which they are held is the degree of care which a
  person of ordinary prudence, charged with
  comparable duties, would exercise under the same
  circumstances. (California Supreme Court)

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Foreseeability

• If a school administrator/teacher could have, or
  should have, foreseen or anticipated an accident,
  the failure to do so may be ruled negligent.
• The concept of foreseeability expects school
  employee to perform as a reasonably prudent
  person of similar training and circumstances
  could perform.
• If the ordinary exercise of prudence and
  foresight could have prevented an accident, the
  courts have ruled schools to be negligent when
  they have not avoided a foreseeable danger to
  students or adults.

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Types of negligence

• Nonfeasance Failing to act when there is a duty
  to act
• Misfeasance Acting, but in an improper manner
• Malfeasance Acting, but guided by a bad motive
• Prerequisites for a negligence action
• The defendant must have duty to plaintiff
• The defendant must have failed to exercise a
  reasonable standard of care in his/her actions
• The defendants actions must be the proximate
  cause of the injury to the plaintiff
• The plaintiff must prove that he/she suffered an
  actual injury

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Common conditions resultingin tort reliability
for negligence

• Failure to provide adequate supervision
  (foreseeability proximate cause (refer to case
  1), general and specific supervision (refer to
  case 2)
• Foreseeability If the school district could
  have, should have, foreseen or anticipated an
  accident, the failure to do so may be rule
  negligent
• Failure to aid the injured/sick
• Creation of further damage through misguided
  efforts
• Permitting students to play unsafe games
• Permitting use of defective equipment
• Maintaining attractive nuisances (unprotected,
  unguarded, unsafe condition that attract a child
  to play refer to case 3)
• Failure to provide adequate instruction
• Failure to give adequate warning

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• Entrusting dangerous devices to students
  incompetent to use them
• Taking unreasonable risks
• Improper organized field trips

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Cases

• Case 1
• A student was hit by a bat swung by another
  student. The teacher then was standing 30 feet
  away, passing milk, at the time of accident. Was
  the teacher liable?
• Case 2
• A six year old student was injured at a
  construction site next to an elementary school
  where remodeling was being done. School
  officials knew of the potential dangers at the
  site and reminded students daily to stay away
  from the area. No other precautions to protect
  students were taken. Was the school liable?

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• Case 3
• A young girl, who sustained an injury while
  watching a baseball game. While playing around
  an abandoned long-jump pit, she was frightened by
  a dog. She fell backward and cut her hand on a
  piece of broken glass in the pit that had been
  covered by sand. The girl presented evidence
  that the school knew of the dangerous condition
  as the schools janitor and school authorities
  had received written notification of the
  condition of the pit. Was the school liable?

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• Case 5
• Cliff Brown, a fifth-grade teacher, was standing
  at the front of his class when there was a knock
  at the door. He opened the door to find a person
  he vaguely recognized. She said her name was
  Mrs. Parson and she needed to take her son Brian
  to the dentist. Brian got his books, left, and
  was never seen again.

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• Safety issues
• Releasing a child to an adult
• School personnel should be very cautious about
  the physical custody of children
• Who has the parental right?
• The legal parent is that person whom the legal
  system recognizes as having the legal rights of
  parenthood
• How about child born to biological parents who
  are not married?
• In the case of divorce, it depends on whether the
  court grants sole/jount custody

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• Case 6
• A high school band member, drowned in a hotel
  pool while on a trip with the band. The student
  dove in the pool and minutes later was found at
  the bottom of the pool. Two chaperons assigned
  to supervise the pool activity immediately
  provided mouth-to-mouth resuscitation and
  continued to do so until the ambulance arrived.
  The parents of the student claimed the school was
  negligent in failing to provide adequate
  supervision for their son, who did not know how
  to swim.

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• Case 4
• A student fell into a ditch while attempting to
  catch a pass in a game of football played during
  the schools lunch period. The principal was
  aware of the ditch on the schools property but
  had made minimal attempts to warn students and no
  attempt was made to fill the pitch

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Types of negligence

• Omission
• Harm occurs due to the lack of care the law
  expects of a reasonable individual (e.g.
  nonfeasance)
• Commission
• Taking an improper action when there is a duty
  to acat
• Misfeasance may be either an act of commission or
  an act of omission

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Waiver of liability (permission slips)

• It is not true under the law that a waiver of
  liability truly protects the school or the
  teacher from court action
• Schools cannot be absolve of their obligation
  toward students by a parental waiver or release

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Student Discipline

• Due process Procedural and substantive due
  process
• Corporal punishment is physical punishment
  applied to modify behavior
• The use of corporal punishment is based on the
  concept of in loco parentis
• Corporal punishment must be differentiated from
  assault and battery
• Assault is the intentional thereat of harmful or
  offensive contact. The words must be accompanied
  by some overt act, no matter how slight, that
  adds to the threatening character of the words

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• Battery is the actual intentional infliction of
  harmful or offensive bodily contact. It is the
  intent to make contact and not intent to make
  injury.
• For example, a teacher has intended only to
  threaten a student by grabbing the students arm
  and accidentally injures the student