Understanding
Liability Issues in the CTE Classroom:
An information guide of liability factors for
CTE teachers and how to avoided being in a negligence situation.
What is liability?
To understand the topic, I will discuss basic
definition.
Literally, liability is the legal
responsibility for one’s acts or omissions. Liability is one of the most
noteworthy terms in the field of law. (Hill and Hill, 2005)
The significance of this is, when there is
failure on the part of the one responsible for a given act or situation, a
lawsuit can /will be the result.
The term for this type of Lawsuit is tort
liability, which simply stated means legal wrong. (Valesey, 1993)
The tort meant that a party had to be “subject
to liability for carelessly causing harm to another” (Owen, 2007). This
definition of tort liability, in the 1850 decision of Chief Judge Shaw, became
what we now know as Negligence. (Owen, 2007)
To
understand negligent liability, it must be broken down into its elements.
Depending on the court, Negligence has as many as five elements, or as few as
three. According to David G. Owen, in an article written for the Hofstra Law Review, stated due to the
conceptually distinct and complexity of each component, he based a thesis on the necessity
of five, to prove a negligent situation. (Owen, 2007). The following is the
list of all five and characterization of each.
Five
Elements of Negligence:
¨ Duty: Behavior in
the position of social responsibility. This is the basis of a negligence claim;
it provides the principal cause of human choice. Goes to the adage of one being
accountable for one’s action. (Owen, 2007)
¨ Breach:
Failure of the responsible party to exercise a standard of care with the corresponding
risk involved in the given environment.
The act of carelessness, and being unreasonable by the responsible party
breaches the duty of care. (Owen, 2007)
¨ Cause in Fact:
This establishes the relationship between the negligence and the harm, the cause
and effect factor. This is the vital connection of the defendant’s wrong
actions to the harm of the plaintiff. (Owen, 2007)
¨ Proximate Cause:
Proximate cause is correlated to holding the defendant responsible for the
negligence fairly, if the outcome was unforeseen. This is a confusing element;
Proximate Cause has little to do with proximity or causation, (Hill and Hill,
2005) and has everything to do with “considerations of logic, common sense,
justice, policy, and precedent”. (Owen, p.1671, 2007)
¨ Harm: This is the
actual damage done as a result of the breach of duty by the defendant. It can
be either personal physical harm or property damage. (Owen, 2007)
Education
and Liability: situations in which teachers may be found liable, if the
following conditions are not met.
There is some liability protection for
teachers under the “Paul D. Coverdell
Teacher Protection Act of 2001.” The purpose of the act was to provide teachers, principals, and other
school professionals the tools they need to undertake reasonable actions to
maintain order, discipline, and an appropriate educational environment.” (SEC.2362.PURPOSE.)
The following is a portion of the
Teachers Protection Act, stated by the US Department of Education Subpart
5-Teacher Liability Protection.
SEC.
2366. LIMITATION ON LIABILITY FOR TEACHERS.
•
“(a) LIABILITY PROTECTION FOR TEACHERS- Except as
provided in subsection (b), no teacher in a school shall be liable for harm
caused by an act or omission of the teacher on behalf of the school if —“
◦
(1)” The teacher was acting within the scope of
the teacher's “employment or responsibilities to a school or governmental
entity;”
◦
(2) “the actions of the teacher were carried out
in conformity with Federal, State, and local laws (including rules and
regulations) in furtherance of efforts to control, discipline, expel, or
suspend a student or maintain order or control in the classroom or school;”
◦
(3)” if appropriate or required, the teacher was
properly licensed, certified, or authorized by the appropriate authorities for
the activities or practice involved in the State in which the harm occurred,
where the activities were or practice was undertaken within the scope of the
teacher's responsibilities;”
◦
(4)” The harm was not caused by willful or
criminal misconduct, gross negligence, reckless misconduct, or a conscious,
flagrant indifference to the rights or safety of the individual harmed by the
teacher; “
◦
(5) “The harm was not caused by the teacher
operating a motor vehicle, vessel, aircraft, or other vehicle for which the
State requires the operator or the owner of the vehicle, craft, or vessel to —
▪
(A) “possess an operator's license; or
▪
(B) maintain insurance.”
If the above
conditions are not met teachers may be found liable.(www2.ed.gov.,2001)
Additionally,
there will be no liability coverage and the possibilities of punitive damages
will be awarded if the teacher’s offence is misconduct, such as a sexual
offence, violation of state or federal law, under the influence of drugs and
alcohol, or a violent crime. (Johnson, 2012)
CTE
teachers have three major responsibilities:
To quote
George Storm, “the responsibility for the physical welfare of the students
rest with the instructor” (Storm.1993)
Three major responsibilities CTE
teachers need to uphold are listed below. After each responsibility, I have
listed some strategies for reducing the likelihood of a CTE teacher being found
liable for their actions in case of an accident.
1)
The duty of Instructor is educating the student completely for the particular
laboratory they will be functioning in: (Storm, 1993)
A.
The instructor must have available to all students the necessary tools in
proper working
B.
All students will be instructed in each of the laboratory areas for function
and safety. The student will be trained on shut down and evacuation protocol.
C.
No student will use equipment before they have tested out on proper use, daily
maintenance, needed safety apparel, recognizing signage/symbols, and manual
referencing of each piece of equipment.
D.
The instructor will have up to date documentation on all equipment inspections
and service, MSDS binder, safety inspections of the shop, and student
information, such as level of equipment competency.
E.
The instructor will maintain discipline and order in the educational
environment.
F.
The instructor will have available all waivers, contracts, and procedural paper
work for all students in the educational environment.
2) The
Duty of the Instructor is to provide total and safe supervision: (Storm, 1993)
A.
The instructor must be in the laboratory / classroom at all times.
B.
If the instructor must leave for a brief time, there must be a responsible
adult trained in that or similar discipline to be present before the instructor
can leave. If the adult is not trained, all equipment must be shut down until
the instructor returns.
C.
Disruptive, or those students who are not following safety protocol will be
removed from the laboratory by the instructor, to insure a continuous safe
environment for the other students.
D.
The instructor will continually assess all students during all phases of
instruction.
3). The
instructor will remain vigilant on the duty of maintenance: (Storm, 1993)
A.
The responsibility of maintaining all equipment to be in perfect working order
is up to the instructor.
B.
Replacement of outdated, broken equipment is up to the instructor.
C.
Maintain all safety checklists for environmental quality of air, lighting, and
organization of consumable items.
D.
The instructor must model the behavior they would like from the students.
E.
Identify, eliminate, or control hazards, for anticipation of any danger to the
students.
What
is a liability for a CTE teacher?
In Managing the Occupational
Educational Laboratory, Storm’s 1993 book, there are listed conditions in
which a CTE teacher could be considered negligent, and possibly found liable if
an accident were to occur. (Toglia, 2009) They are as follows:
“The instructor leaves the students in the
laboratory unsupervised.”
“The instructor leaves the laboratory with an
unqualified person in charge.”
“The instructor sends a student outside the lab
to perform hazardous activities without acceptable supervision.”
“The instructor permits a student with limited
physical or mental ability to use hazardous equipment”.
“The instructor fails to keep written reports
of accidents.”
“The instructor fails to obtain written
statements from witnesses of accidents.”
“The instructor fails to provide proper safety
instructions.”
“The instructor fails to inspect equipment
before permitting operation.”
“The instructor fails to enforce laboratory
safety rules.”
“The instructor removes or modifies
factory-installed safety devices on instructional equipment.”
“The laboratory lacks adequate safety devices
and safeguards.”
“The laboratory lacks well-constructed storage
racks, shelves, or both.”
“Students use unapproved equipment (students’
owned or instructors’) in the lab.”
“Students work in the lab after or before
regular class periods without acceptable supervision.” (Toglia, 2009)
Five
Resources for CTE teachers regarding teacher liability and negligence
1)
Managing the Occupational Education
Laboratory, by George Storm, offers many detailed sections on what a CTE
instructor needs to be up to date on all safety issues in an occupational
teaching environment.
Storm,
George. (1993). Managing the occupational education laboratory (2nd
ed.) Ann Arbor, MI: Prakken Publications.
2) National
Institute for Occupational Safety and Health
This
site provides plans and procedures for teacher training, checklist
dissemination, follow-up, and record keeping.
This site will also assist with guidance for teachers, safety
committee members, and other persons to use the checklists regularly in
career-technical classrooms, shops, and labs.” (CDC-INFO)
National
Institute for Occupational Safety and Health (n.d.) Implementing a Safety
Checklist Program. Retrieved April 28, 2013 from http://www.cdc.gov/niosh/docs/2004-101/chap3.html
3)
Teacher Hub.com
A
teacher’s resource on advice for teachers (CTE and general) regarding
liability, negligence, and information on liability coverage
4)
Paul D. Coverdell Teacher Protection Act of 2001, Provides information on
teacher liability protection including detail on limitation on liability for
teachers
5)
Keeping it Safe: Safety and Liability Advice for CTE Programs, is a Peer-Review
Article. This article was written
for CTE educators, administrators, and students because there must be more
attention given to the safety in the CTE learning environment due to the hands
on and physical nature.
Reference:
U.S. Department of Education. (2004). Teacher
liability protection. Retrieved from: http://www2.ed.gov/policy/elsec/leg/esea02/p33.html
Hill, G. & Hill, K. (2005). Liability.
Retrieved from:
Johnson, T. (2012). Strategy for Effective Teaching (CTE)
Teacher Liability, April 27, 2012 , http://tennysonjohnson.wordpress.com/2012/04/27/teacher-liability/
Owen, D. (2007). Hofstra Law Review. The Five
Elements of Negligence. Retrieved from:
Storm, G. (1993). Managing the Occupation
Education Laboratory. Second edition. p.86-99 : Prakken Publications, Ann Arbor, MI
Toglia, T (2009). Tech Directions. Keeping It
Safe: Safety and Liability Advice For CTE Programs. V68 n6, p.17-21 Jan.2009
Retrieved From:
http://www.eric.ed.gov/ERICWebPortal/search/
Special Thanks to All the SUNY Oswego Theatre StudentsFor permission to photograph them during the strike of the production "She Stoops To Conquer"
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