Many of the cases for which I provide consultation to attorneys (both plaintiff and defense) involve the question of whether the school, through its employees, provided appropriate supervision to students when someone was injured or even killed.
In defense of the school, it should be noted that lack of supervision or inadequate supervision may not necessarily create liability; it must be shown that the lack of supervision is the proximate cause of the injury. Further, for the plaintiff to recover there must be a duty to supervise the plaintiff on the part of the school.
A key element is the distinction between a duty to render specific supervision and a duty to provide general supervision.
When, as an education expert, I review the elements of a case I determine whether specific or general supervision is required, under the circumstance. The second element of the review focuses upon the competence of the person supervising, the location of the supervisor at the time of the injury, and the number of supervisors on duty.
The difference between specific and general supervision
Specific supervision is required when there is instruction, participant incapability, or certain participant behaviors. Specific supervision is most often thought of in the instructional mode. From a legal perspective, instruction is being given so that the individual can gain that knowledge of the activity, understanding in terms of one’s own capabilities, and appreciation of the potential injuries required to have the participant assume the inherent risks of the activity. As the participant gains in knowledge, understanding, and appreciation, the degree of specific supervision required is reduced, and, in fact, the participant is provided with transitional supervision and then general supervision.
Specific supervision is not a function of the activity, but of the individual participating. Some people talk about high risk activities or hazardous activities – it is not the activity which is hazardous or high risk, for the courts have not held any activity but boxing inherently dangerous, but the people and how they participate; in other words, reference should be made to “people hazards” rather than “activity hazards.”
The determinant of likelihood of injury is directly related to the participant’s skill capacity, physical and mental condition to do the activity, and knowledge/understanding/appreciation of the activity itself.
When there is inability to perform the activity, due to physical disability or lack of mental capacity, then specific supervision is required.
Another situation in which specific supervision is required is when participant behaviors so indicate, i.e., when the teacher or sponsor has notice of the “propensity” of the individual to behave in a manner which either is self-injurious or injurious to others. This notice can be either actual or constructive.
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This is the first in a series of articles on supervision and student injury. The next will focus on transitional supervision and general supervision.
