Phoebe Prince, the first-year student at West Hadley High School in Massachusetts committed suicide after relentless bullying.  This story has been covered by media around the country for the past several weeks. 

This truly is a tragedy that has the ingredients to fashion a major advance in student rights. 

Elizabeth D. Scheible, a district attorney in Massachusetts is taking on Phoebe’s bullies through the criminal justice system.  At least nine teenagers identified in the bullying tragedy are facing criminal charges, including criminal harassment which carries with it a two and one-half-year jail sentence a fine, or both.

Elizabeth D. Scheible, a district attorney in Massachusetts is taking on Phoebe’s bullies through the criminal justice system.  At least nine teenagers identified in the bullying tragedy are facing criminal charges, including criminal harassment which carries with it a two and one-half-year jail sentence a fine, or both.

Now, Phoebe’s parents are suing the school in civil court.  Schools have a duty to protect children from the harms of bullying. If the school administrators had knowledge of the harassment, bullying and intimidation of Phoebe by her classmates and didn’t act reasonably to stop it, they can be held liable for her death.

Civil lawsuits have been the norm.  But now, in addition to civil suits, if their state laws cover criminal harassment, prosecutors can file criminal charges against individual students.  If convicted, these students can spend time in jail.

This new arsenal in the assault on school bullying requires strong criminal harassment laws and prosecutors who apply those laws to the outrage of harassment in schools.

If the case in Massachusetts leads to convictions and jail time for Phoebe’s bullies this will user in a shift in student rights – one that will provide students protection under both the civil and criminal justice system.

Keep an eye on Massachusetts.

                For a plaintiff to prove negligence, generally, four elements must be proven:

1. Legal duty;
2. A breach of legal duty;
3. Proximate cause; and
4. Damages or injury.

Legal duty means conforming to a certain standard of care for the protection of others against unreasonable risks.  There is a duty of due care that the law recognizes one person owes to another.  This duty may arise from a contract, a statute, common sense, or a special relationship the parties have to one another.  Regarding students, the courts have found that schools and their employees have the duty to supervise students, provide adequate and appropriate instruction prior to commencing an activity that may pose a risk of harm, and provide a safe environment.  Usually, that duty extends to students while they are in the custody or control of the school.  Schools may have a duty to supervise students off school grounds when they have caused them to be there such as while on field trips.

                Schools may have a duty to supervise students on school grounds before and after school when they have caused them to be there, for example, when the bus drops them off.  A duty can be extended if a person assumes additional responsibilities, such as assuming the duty to supervise students before and after school.  Schools may acquire a duty to supervise when they have, by their previous actions, assumed the duty to supervise at this time such as when some staff has supervised intermittently or consistently before official time to arrive.

                Schools also have a duty to warn of known dangers even when they do not have a duty to supervise.  In the general workforce, a supervisor, and ultimately the company, is responsible for the negligent acts of employees under the doctrine of respondeat superior.  However, in education, generally no one is automatically responsible for the acts of another.  School administrators are not automatically responsible for the negligent acts of teachers.  In school situations, usually a plaintiff must find a separate duty on the part of each defendant. 

                In the context of schools, one standard of care is reasonable supervision of students.  Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for student supervision.  Other standards of care include the duty to warn parents of possible harm to their children and duty to warn of dangerous conditions on school property.

                School employees have the responsibility to hold pupils to a strict account for their conduct on the way to and from school, on the playground, during recess and lunch time, and on class trips.  Teachers have the legal duty to prevent misconduct on the part of pupils which could result in injury to a pupil and which may lead to school liability.

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.