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.

This is a good time to reflect and to plan for the new school year. 

If you are a teacher – how safe is your classroom? 

How can you arrange your classroom so that you can minimize the chance of a student accident?  Look around the room and consider what your most distracted student would do in the environment.  Plan for the worst so that the worst won’t happen.  Avoid hazards so that the likelihood of school accidents is reduced.  Don’t keep a hot plate or a crock pot in your classroom and don’t use extension cords not made for the job.  Check the chairs and desks.  Are they all safe, or do some need to be repaired?  Let your principal know when you feel that something is not safe in the class.  

If you are a principal – how safe is your school?

How can you effectively communicate with your teachers about safety in their classrooms?  Do you have a one-time meeting at the beginning of the school year to review safety or do you go into each classroom with your head custodian and “inspect” it along with the teacher?  After all, you are the leader of the school and that includes not only academic leader but the person who oversees the safety of your students and staff.  Check to be sure that your school is using the right AV cart to hold that television and that the straps are securely holding it to the right type of cart.  I worked on a case several years ago where the jury awarded a student $1.7M when an AV cart with a 55 lb. television fell over and hit him in the head.  The cart was unsafe and had been recalled but the school ignored the notice.

            That being said, inadequate supervision, or lack of supervision, may not necessarily create liability – it must be shown that the lack of supervision is actually the proximate cause of the injury.  Further, for the plaintiff to recover there must first have been a duty to supervise the plaintiff on the part of the defendant.  A key element is the distinction between a duty to render “specific” supervision and a duty to provide “general” supervision.  Other issues deal with the competence of the person who is supervising, the location of the supervisor at the time of the injury and the number of supervisors on duty.

What constitutes due care and adequate supervision depends largely on the circumstances.  These can include the number and age of the children, the activity in which they are engaged, the period for which they may have been left without supervision, the ease of providing some alternative means of supervision and the capacity of the child. 

            The duty to supervise children in schools and other organizations, such as the YMCA summer camp, after-school park programs and other activities, may arise in the same manner as any duty owed – by statutory requirement, by voluntary assumption of a duty and by the duty being inherent in the situation.  The basis of duty is whether or not there is a special relationship between the child and the organization which requires that organization to take affirmative action and provide a reasonable safe environment.  However, inasmuch as one is not an insurer of safety and all situations do not give rise to a duty, there are a considerable number of cases wherein the allegation is failure to supervise – but in fact there is no duty to supervise.  The duty to supervise should be distinguished from the authority to control the conduct of participants under the doctrine of in loco parentis. 

            An example of a school not having a duty to supervise is depicted in the following example:  An 8-year-old was struck by a 12-year-old on a bicycle while riding on the school playground.  The accident happened on a Saturday.  The court held that where the activity drawing the spectators was not a school-related activity, there was no requirement for supervision by the school.  Further, the school did not have knowledge that bicycles had been ridden in that area in a negligent or dangerous manner prior to the accident. (Orsini v. Guilderland Central School Dist. No. 2, 46 A.D. 2d 700, 360 N.Y.S. 2d 288 (1974); see also Diel v. Board of Education, 1 A.D. 2d 676, 146 N.Y.S. 2d 511 (1955) child struck by playmate on bicycle when about ready to leave playground – no duty; Kantor v. Board of Educ., 251 A.D. 454, 296 N.Y.S. 516 (1937) no duty, boy playing tag on bicycle injured child.))

            Another example is where there may be no duty to supervise because of the nature of the activity and the expectations and/or capacity of the children.  In a 1986 Tennessee case a 13-year-old eighth grade boy was injured, while on a school field trip, when struck by an automobile when he crossed the street after lunch to go to the park.  Plaintiff alleged that the two teachers were negligent in not personally escorting the student across the street.  The court held that teachers do not have such duty where there was nothing to suggest that the student would not use ordinary care for his own safety or that the street was unreasonably dangerous to cross. (King v. Kartanson, 720 S.W. 2d 65 (Tenn. App. 1986))

            If an injury is not foreseeable, there is no duty to supervise.  In a D.C. case involving a child who wandered off public school playground, through a gap in the fence, and was struck and killed in the street by a truck, the court said that if no special dangerous condition exists, a school is not under a duty to supervise all movements of its students at all times, but where such a condition does exist, and the school has knowledge of its existence, greater supervision is required to insure the safety of the students. (Ballard v. Polly, 387 F. Supp. 895 (1975); see also Abdur-Rashad v. Consolidated Rail Corp., 135 A.D. 2d 208, 524 N.Y.S. 2d 716 (1988) child injured on tracks near playground, no duty to child who left playground absent any defect or condition of playground making danger foreseeable.))

            In conclusion, there first needs to be an activity which requires supervision if lack of supervision is going to be alleged.

As a school safety expert and education consultant to attorneys, I’ve faced an endless variety of challenges.  The only common thread is that when standards of supervision in school are lax, children get hurt.

Situation: Are parents contacted when a teacher is planning a class trip and are chaperones assigned?  When planning such a trip, does the teacher take into consideration the students’ age and experience, any potential hazards associated with the planned activity, and the adult-to-student ratio?  Did the teacher review the trip with the chaperones and assign specific students to each?  Has the principal reviewed the activity?  Are emergency measures in place to allow for cell phone and radio contact, the presence of a nurse, and special provisions for students allergic to insect bites and certain foods?

Red flags: Students embark on trips without parental notice.  The teacher is unfamiliar with the site and its potential hazards.  The teacher is the trip’s sole supervisor.  The nurse has not been contacted to consider the students’ safety or special needs.