Chapter Four: Law and Education
Negligence and Liability
Teachers are expected not only to educate students but, like parents, to take responsibility for their safety and well-being. Parents send their children to school believing that the school will take reasonable precautions to safe-guard their children from physical or mental harm. However, as might be expected when large numbers of people are involved, accidents and tragedies do occur. Over time, a body of law has grown that helps determine what the responsibilities of schools are for keeping students safe. The law governing these matters is not found in statutes, but in the common law of court decisions and precedents created over many years.
When a student is injured while under the care of the school, an attempt is made to assess responsibility for the mishap. If the school or one of its employees can be found to be negligent, then the family may be able to claim financial compensation for its loss. The amounts of compensation can be quite substantial. For example, if a student is paralyzed, he or she will need lifelong care and support, which comes only at a high price. If the school is at fault, it may be required by the courts to provide these funds.
Although negligence is normally the result of some individual’s action or lack of action, in the case of teachers and schools the school district usually assumes the legal liability. Therefore, even though a student may have been injured while under a teacher’s care, it is the school board that will be sued (if there is a lawsuit) and the school board’s insurance coverage that will pay for any damages. This is known as vicarious liability (the employer assumes the liability for the actions of employees).
If, however, the teacher acted negligently, the school board can, in certain situations, in turn sue the teacher to recover its costs. If a teacher drove students on a field trip and was involved in an accident in which students were injured, the school board would normally assume the liability. But if the teacher had consumed alcohol above legal limits at the time, the board might be able to sue the teacher personally to recover the damages it may have had to pay to students’ families. Vicarious liability is thus an important but not a total protection for teachers.
The Meaning of Negligence
The concept of negligence implies three things. First, there must be a legal duty to care, which means a duty to act in a way that avoids causing harm to others when such harm might reasonably have been foreseen. Teachers would normally have such a duty toward their students during school hours or school activities. Second, negligence can occur only when there is a breach of the duty to care. That is, the person’s actions must be inconsistent with what we would ordinarily expect from a reasonable, caring individual. Finally, some harm or actual damage must result from the breach. There can be no legal finding of negligence if there is no harm, or if the harm did not result from the breach of duty. To take our earlier example, the drunken teacher would not be legally guilty of negligence if no accident ‒ and thus no student injuries ‒ had occurred. Nor would the teacher be liable if the injury occurred through some cause other than that teacher’s drunkenness (That such conduct is unprofessional and the teacher likely to be punished by the school district is a separate issue). Harm, however, is not necessarily confined to physical injury. A psychological trauma suffered by a student might well be considered to be as important a harm as a physical injury.
These principles seem clear, yet their application in particular cases can be very difficult. Just how far does the duty to care extend, for example, and what kind of behaviour constitutes a breach of it? If children are playing on the school playground, how closely must they be watched? What about children on their way to or from school? What about students working with tools in a school workshop?
In the courts, situations such as these tend to be decided on questions of what is reasonable. The courts have generally held that teachers should act toward their students as would a “careful and judicious parent,” although it has also been recognized that teachers are responsible for many more children at any given time than are most parents. In making a determination of appropriate care, among the factors that may be considered are the number of students being supervised; the nature of the activity; the age, skill, and training of the students; and the nature and condition of any equipment. Taking all of these into account means that it is very difficult to generalize as to what conduct may or may not be considered negligent; however, Box 4.9.1 includes supervision standards created by the Ontario Principals’ Council that offer guidelines for student supervision.
Thus, teachers of younger students would be expected to exercise more careful supervision of, say, students crossing a street than would teachers of older students. While the courts have held that schools should provide adult supervision of playgrounds, they also acknowledge that the school district cannot be expected to maintain careful watch over every student at every moment. In a school workshop equipped with power tools, careful attention to the inherent dangers associated with such equipment is necessary. Teachers would be expected to provide clear instructions to students regarding safety procedures in operating equipment and would be obligated to provide adequate supervision while such tools were being used (Wickens, 2011). A key point in this regard is that legal precedents have indicated that teachers must expect that children may behave foolishly or recklessly, and so extra precautions must normally be taken to guard against injury (Box 4.9.2). For example, potentially dangerous chemicals would need to be locked carefully away when not in use, even if students had been warned that they were dangerous and should not be handled or ingested. The warning itself would be an insufficient safeguard, given that students might act contrary to it.
- Only trained staff shall be given supervisory responsibilities in a school.
- A supervision ratio of staff: student must fall within the following ranges:Junior Kindergarten/Senior Kindergarten: 1 supervisor for 8-20 studentsElementary: 1 supervisor for 50-100 students
Secondary: 1 supervisor for 100-150 students
- In elementary schools, at no time shall there be fewer than 2 supervisors (within direct line of sight of each other) during recess, lunch and before and after school.
- Elementary supervisors must have continuous and direct sightlines of the students they are supervising.
- Supervision duties cannot erode instructional time. For example, Educational Assistants must not be assigned to supervision duties if it will conflict with the instructional time of special needs students.
- Students shall not be used to supervise other students in the absence of a teacher.
- Junior and Senior Kindergarten students in separate designated play areas require separate/additional supervision.
- Younger students should be separated from older students while playing in the playground, due to the increased possibility of injury.
- Play structures require separate supervision.
- While students are eating, each enclosed room must be supervised separately.
Source. Ontario Principals’ Council, (2007). Supervision Standards for Ontario’s Schools.
Field trips are another area where risks of negligence have occurred. Although securing parental permission forms prior to departure may well be advisable, such forms in no way diminish a school’s responsibility for student care; nor do they prevent a parent from successfully suing if the school is shown to have been negligent. The courts have held that people cannot sign away their basic legal rights; therefore, a permission slip does not absolve the school from its obligation to safeguard students’ welfare.
Teachers’ liability for the safety of their students in school is also related to their status as occupiers and students’ status as invitees. Occupier’s liability relates to the law that covers the liability of an owner or occupier of buildings and grounds for injuries suffered by people while in the buildings or on the grounds. Depending on the reasons for a person’s presence on a property, the courts recognize three hierarchical categories of persons: invitees, licensees, and trespassers. Students in schools fall into the category of invitee, which requires the highest standard of care from teachers as occupiers and school boards as owners. As such, teachers and school boards have a duty to take reasonable steps to ensure that the school premises are safe. They have a proactive responsibility on their part to inspect the premises regularly for hazards that might endanger students. Children who visit school grounds on weekends ‒ and not for the purpose of school-organized activities ‒ would more likely be classified as licensees, in which case the duty of care is reduced. Children breaking into a school would be categorized as trespassers. Here the duty of the occupier is minimal, limited essentially to not deliberately creating hidden dangers or traps to injure the trespasser.
- In a British Columbia case, a student had broken his leg in a skiing accident weeks prior to an incident on a school soccer field where he slipped and rebroke his leg even though he was not participating in the physical education class at the time. His physical education teacher examined his leg and even though the student told the teacher he thought he had rebroken the leg, the teacher directed him to walk back to the school to call his mother. It was alleged that the school board was liable under the principles of occupier’s liability in its duty to maintain the soccer field in a safe manner, and was vicariously liable for the teacher’s negligence in requiring the student to attend the class and also with regard to the post-injury care. The school district was not found to be liable under the principles of occupier’s liability, but was vicariously liable for the negligence of the teacher. The teacher was found not to be negligent in allowing the student to attend physical education classes, but was found negligent in requiring the student to walk back to the school unassisted. The court awarded the student damages of $1500.00.
- In a British Columbia case, two students climbed a tree located near the school roof and started running across the roof. A teacher heard the noise and yelled to the boys to get off the roof. The boys decided to get off the roof by using a fence not in view of the teacher’s window. One of the students fell to the bottom of a cement stairwell and was seriously injured. Another teacher found the student who was hospitalized for two weeks. The mother of the boy filed a lawsuit against the School District under the BC Occupier’s Liability Act. The Board was found to be 75% liable for the student’s injuries, while the student was found to be 25% liable. The Court suggested that the School Board may have reasonably foreseen that a student might climb the tree to access the roof, and fall. This was supported by statements from the principal who noted that in the recent past unauthorized individuals had been accessing the roof. In addition, there was no indication that the school regularly monitored roof access points (Tannahill, 2014).
- In a precedent-setting trial court case ruling in 2020, the Trillium Lakeland District School Board was found vicariously liable for the sexual abuse of a student perpetrated by a teacher, ordering the teacher and the school board to pay more than $500,000 in damages. This is the first time that a school board was held vicariously liable for a sexual abuse, first by failing to support the student after her allegation to administrators about the abuse, and second, by failing to immediately remove the teacher.
More extensive discussions of various aspects of liability can be found in MacKay et al. (2020), Teachers and the law: Diverse roles and new challenges. In cases of liability, as in so many other areas of law, the facts of a particular case (and their interpretation by a court) are as important as any principles. Teachers need to take issues of care and liability seriously, but not become so worried about negligence that they forget their primary duty to provide education to students.