Transcript Slide 1

What to Do about Violence on Campus?
CCCU International Forum on Christian Higher Education
Nathan A. Adams, IV, Ph.D., M.A., Esq.
Partner
Holland & Knight LLP
Phone: 850-425-5640
[email protected]
Copyright © 2009 Holland & Knight LLP All Rights Reserved
Agenda
• History of campus violence
• Anatomy of the threat
• College liability
– Negligence
– Clery Act of 1990
– ADA and Rehabilitation Act
– Other causes of action
• Solutions
– Enrollment Policies
– Security and crisis plans
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The Headlines are Shocking …
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History of University Shootings
More Headlines
May 6, 2009
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History of University Shootings
Campus Violence, 1960-09
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History of Campus Violence
On Campus Criminal Offenses, 2005-07
Non-profit, Liberal Arts Institutions
Source: U.S. Department of Education, 2009
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Anatomy of the Student Threat
The Secret Service reported these findings about 37 school shootings…
• Incidents of targeted violence at school rarely were sudden,
impulsive acts.
• Prior to most incidents, other people knew about the attacker’s
idea and/or plan to attack.
• Most attackers did not threaten their targets directly prior to
advancing the attack.
• Most attackers engaged in some behavior prior to the incident
that caused others concern or indicated a need for help.
• Most attackers had difficulty coping with significant losses or
personal failures. Moreover, many had considered or attempted
suicide.
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Anatomy of the Student Threat
The Secret Service Report Cont.
• Many attackers felt bullied, persecuted or injured by others prior
to the attack.
• Most attackers had access to and had used weapons prior to the
attack.
• In many cases, other students were involved in some capacity.
• Despite prompt law enforcement responses, most shooting
incidents were stopped by means other than law enforcement
intervention.
Date: May 2002
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Anatomy of the Student Threat
Shooter Snapshot
The high profile cases involved these facts:
• Anxiety, depression and suicidal ideation
• Disenfranchised, social out-casted, bullied and grudge-bearing shooter
• If a student, recent school discipline (e.g., expulsion)
• Anti-Christian, anti-Jewish and “goth” subculture
• Pre-incident indicators (i.e., acting-out on blogs)
• Weapons purchases (arms and bombs)
• Easy access to students
• Poor coping skills
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What Liability Do Colleges Have for Campus Violence?
Negligence
• Duty of care - arises from:
– Legislative enactment or administrative regulation
– Judicial interpretation
– Duty arising from general facts of the case
• Breach of that duty – where a legal duty exists, a defendant must
exercise reasonable care under the circumstances
– Custom and practice in the industry is relevant
• Proximate causation – there must be a direct causal connection between
the breach of duty and injury.
• Damages
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Negligence
Rule & Exception for Special Relationships
• The general rule is that there is no duty to control the conduct of a third person
so as to prevent him from causing physical harm to another unless:
– A special relationship exists between the actor and the third person which imposes
a duty upon the actor to control the third person’s conduct; or
– A special relationship exists between the actor and the other which gives to the
other a right of protection.
Restatement (Second) Torts § 315.
• Special relationships include these:
– school-minor student
– employer-employee
– landlord-tenant
– business-invitee.
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Negligence
Is There a College-Student Special Relationship?
• Most courts have rejected the university-college
student relationship alone as a basis for liability.
• But some jurisdictions recognize a special relationship
between a student and university when there are
particularly sympathetic facts. For example:
– Schieszler v. Ferrum College, 236 F. Supp. 2d 602 (W.D. Va. 2002)
(college had special relationship with student who hung self where, inter
alia, college officials were aware that student had emotional problems and
indicated intent to commit suicide)
– Shin v. Mass. Institute of Tech., 19 Mass. L.Rptr. 570, 2005 WL 1869101
(Mass. Super. 2005) (university had special relationship with student who
committed suicide because university was well aware of student’s suicidal
ideation)
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Negligence
Duty of Care: Business-Invitee
• Most jurisdictions recognize that a special relationship exists between a
business or landowner and its invitees. With respect to universities, students
are the invitees.
– Furek v. University of Del., 594 A. 2d 506 (Del. 1991) (college students are
invitees, and universities owe them a duty to “regulate and supervise” student
activities that are foreseeable and within the university’s control)
– Estate of Butler ex rel. Butler v. Maharishi Univ. of Mgmt., 589 F. Supp. 2d
1150 (S.D. Iowa 2008) (university, as possessor of property where student
attended school and where act of violence against student occurred, owed
student a duty of care as its invitee)
– Luina v. Katharine Gibbs Sch. N.Y., Inc., 37 A.D. 3d 555, 830 N.Y.S. 2d 263,
216 Ed. Law Rep. 605 (2d Dep’t 2007) (as a property owner/occupier, college
had a duty to exercise reasonable care to protect the student from reasonably
foreseeable criminal or dangerous acts committed by third persons on its
premises)
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Negligence
Duty of Care: Landlord-Tenant
• A university may also be a landlord with a special relationship
to its student tenants. Violence which occurs to students in
dormitories as opposed to in academic buildings, in dining
halls, or walking around campus falls into this category, rather
than the business-invitee category. A handful of jurisdictions
(e.g., Maryland) have rejected this basis for liability.
– Mullins v. Pine Manor College, 389 Mass. 47, 449 N.E. 2d 331 (1983)
(college and an administrator owed a duty to exercise care to protect the
well being of their resident students)
– Peterson v. San Francisco Cmty. College Dist., 36 Cal. 3d 799, 205 Cal.
Rptr. 842, 685 P. 2d 1193 (1984) (college liable where inadequate lighting
near a tenant’s apartment allowed an intruder to break in to the apartment)
– Nero v. Kan. State Univ., 253 Kan. 567, 861 P. 2d 768 (1993) (providing
student housing conferred upon the university all the rights and duties of a
landlord)
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Negligence
Duty of Care: Contract
• A duty of care may arise by contract. The contract creates the relation out of
which grows the duty to use care in the performance of a responsibility
prescribed by contract.
– Duarte v. State, 88 Cal. App. 3d 473, 151 Cal. Rptr 727 (Cal. App. 4th
Dist. 1979) (claim stated for breach of warranty of habitability in
residence contract when state university student was raped and
murdered in her residence hall)
– Drake v. Island Cmty. Church, Inc., 462 So. 2d 1142 (Fla. 3d DCA
1984) ), rev. denied, 472 So.2d 1181 (1985) (reinstating complaint that
school breached written contract in that teacher assigned to educate her
induced child to engage in sexual activity)
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Negligence
Duty of Care: Voluntary Assumption
• General Rule: One who undertakes to act even when under no obligation to
do so, thereby becomes obligated to act with reasonable care. See Union
Park Memorial Chapel v. Hutt, 670 So. 2d 64 (Fla. 1996).
• One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of the
other’s person or things, is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to perform his
undertaking, if
– His failure to exercise such care increases the risk of such harm, or
– The harm is suffered because of the other’s reliance upon the
undertaking.
L.A. Fitness Int’l, LLC v. Mayer, 980 So. 2d 550, 560 (Fla. 4th DCA 2008), rev.
denied, 1 So.3d 172 (Fla. 2009).
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Negligence
Duty of Care: Voluntary Assumption Examples
• Internships. Nova Southeastern Univ, Inc. v. Gross, 758 So. 2d 86 (Fla. 2000)
(since university had control over graduate student’s conduct by requiring her to
do mandatory internship and by assigning her to specific location, it assumed
correlative duty of acting reasonably in making that assignment)
• Accommodations. Mullins v. Pine Manor College, 389 Mass. 47 (1983) (college
undertook a duty to provide students in dormitories with protection from
criminal acts of third parties, in this case rape; the jury could have found
deficiencies including an observation post too distant from the fence so the
intruder could climb over without being detected, exterior gates too easy to scale
or open, walls too low to be adequately protective, locks on the doors too easy to
pick, too few guards on duty without any method for ensuring they were
performing their patrols; single key system for outside and interior doors; no
deadbolt, chains or knife guard)
• Transportation. Hinckley v. Palm Bch. County Bd. of County Comm’rs, 801 So.
2d 193 (Fla. 4th DCA 2001) (when county undertook to provide transportation
services to student molested by driver it had a duty to protect her from
foreseeable harm); McClure v. Fairfield Univ., 35 Conn. L. Rptr. 169, 2003 WL
21524786 (Conn. Super. Ct. 2003) (university liable for drunken shuttle bus
driver)
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Negligence
Duty of Care: Does It Extend Off-Premises?
• A college’s duty of care may extend off-premises if school-related.
Examples of duty imposed:
– Gross v. Family Servs. Agency, Inc., 716 So. 2d 337, 339 (Fla. 4th DCA 1998),
approved, 758 So.2d 86 (Fla. 2000) (internship off-campus where student was
sexually assaulted was school-related)
– Rupp v. Bryant, 417 So. 2d 658, 667 (Fla. 1982) (student stated a claim for
liability against school for injuries sustained during off-campus hazing by
recognized school club)
– Gutierrez v. Dade County Sch. Bd., 604 So. 2d 852 (Fla. 3d DCA 1992), rev.
denied, 618 So.2d 208 (Fla. 1993) (school liable for shooting by assailant that
occurred a few feet beyond property line)
• Examples of duty not imposed:
– Brown v. N. Carolina Wesleyan College, Inc., 309 S.E. 2d 701, 702 (N.C. App.
1983) (college not liable when non-resident student was abducted from college
campus by a third party and raped and murdered off-campus)
– Boyd v. Tex. Christian Univ., 8 S.W. 3d 758, 760 (Tex.App. 1999) (court
declined to recognize a special relationship between college and football players
or between college and injured student at off-campus event)
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Negligence
Foreseeability of Harm
• Relation to Negligence. Foreseeability is both a component of the duty
element of negligence and of proximate cause.
– Foreseeability of Zone of Risk: The duty element of negligence focuses on
whether the defendant’s conduct foreseeably created a broader “zone of
risk” that poses a general threat of harm to others. This is a minimal
threshold legal requirement for opening the courthouse doors.
– Proximate Causation. The proximate causation element is concerned
with whether and to what extent the defendant’s conduct foreseeably
and substantially caused the specific injury that actually occurred. This
is part of the specific factual requirement that must be proved to win the
case once the courthouse doors are opened.
• Foreseeability and proximate causation are jury questions. The plaintiff
must show that there was a greater likelihood or probability that the harm
complained of was due to causes of which the defendant was responsible
than from any other cause.
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Negligence
Foreseeability of Injury - Knowledge of Specific Threat
• Foreseeability may arise based on a school’s
knowledge of a specific threat. For example:
– Jesik v. Maricopa County Cmty. College Dist., 611 P. 2d 547 (Ariz. 1980)
(reversing summary judgment against community college when student was
shot by third party who he reported twice to security guard as threatening him)
– Peterson v. San Francisco Cmty. Coll., 685 P. 2d 1193 (1984) (college had a
duty to prevent attempted rape on a stairway in the college’s parking lot where
prior attacks happened)
– Schieszler v. Ferrum College, 236 F. Supp. 2d 602 (W.D. Val. 2002) (college
liable when student committed suicide after campus police aware of student’s
prior attempt merely asked him to sign a statement promising not to harm self)
– Tarasoff v. Cal. Bd. of Regents, 551 P. 2d 334 (Cal. 1976) (college liable when
treating psychotherapist failed to warn a third party whom a student patient had
threatened)
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Negligence
Foreseeability of Injury – Like-Kind General Threat
• Foreseeability may also give rise to a duty based upon the college’s
knowledge of a general threat that could endanger students’ safety. It is
especially dangerous when a school has knowledge of a harm that is
within the “scope of injury” (has a like-kind relationship with the
injury) sustained by the plaintiff.
– Duarte v. State, 88 Cal. App. 3d 473, 151 Cal. Rptr 727 (Cal. App. 4th Dist.
1979) (liability arose from rape and murder of student in dorm because
university had knowledge of a chronic pattern of violent assaults, rapes, and
attacks on female members of the university community)
– Doyle v. Gould, 22 Mass.L.Rptr. 373, 2007 WL 1203567 (Mass. Super. 2007)
(Northeastern University not liable for shooting of student in apartments
rented by University based on knowledge that complex had been burglarized
four times, where there was no evidence of violent crimes taking place there)
– Agnes Scott College, Inc. v. Clark, 243 Ga. App. 619, 616 S.E. 2d 468 (2005)
(general crime statistics and student concerns about walking alone in college
parking lot at night would not create issue of fact regarding foreseeability of
random attack on student in broad daylight in lot)
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Negligence
Foreseeabilty of Injury – Constructive Knowledge
• Foreseeability can arise even when school personnel are not
actually aware of a risk, as long as the person reasonably should
have been aware of the risk.
– Collins v. Sch. Bd. of Broward County, 471 So. 2d 560 (Fla. 4th DCA
1985) (school liable for sexual assault of student in shop class when
teacher left room; had teacher been at desk he would have seen the
assault)
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Negligence
Breach of the Duty: Standard of Care
• To the extent a defendant has a legal duty, custom and practice of an
industry can help define the standard of care the defendant must
exercise. See L.A. Fitness Int’l, LLC v. Mayer, 980 So. 2d 550, 558 (Fla. 4th
DCA 2008), rev. denied, 1 So.3d 172 (Fla. 2009).
• Example: In the past ten years, courts have said that rental housing
owners and managers, as well as tenants, need to become more
proactive in making their properties reasonably safe from violent
criminals. Consequently, the insurance industry reports that rental
housing properties have been successfully sued more often for
inadequate security claims than any other type of claim.
See Eichenbaum v. Rossland Real Estate, Ltd., 502 So. 2d 1333 (Fla. 4th DCA 1987)
(knowledge by lessees, operators, and owners of shopping mall of prior similar
criminal attacks occurring at mall gave rise to duty by them to provide adequate
security for customers and employees).
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What Liability Do Colleges Have for Campus Violence?
Clery Act
• Reporting requirements. Institutions participating in Federal student
aid programs must report campus crime statistics. 20 U.S.C. § 1092(f).
• Campus safety policies. The same institutions must disclose campus
safety policies including sexual assault policies. 20 U.S.C. §
1092(f)(8)(A)-(B).
• Crime alerts. Institutions must warn students and employees of crimes
on campus “in a manner that is timely and that will aid in the
prevention of similar circumstances.” 20 U.S.C. § 1092(f)(3); Havlik v.
Johnson & Wales Univ., 509 F. 3d 25, 28 (1st Cir. 2007).
• Daily logs. Institutions that have a police or security department must
make, keep, and maintain a daily log, recording all crimes. 20 U.S.C. §
1092(4)(A).
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Clery Act
Noncompliance Repercussions
• The Clery Act does not create a private right of action, and it is
not supposed to establish the standard of care, but it may
influence the standard of care by requiring policies that
themselves create the threshold.
• The U.S. Department of Education is authorized to impose civil
fines of up to $27,500 per violation on an educational
institution that has “substantially misrepresented” the nature of
the crimes required to be reported.
• The Department may also limit, suspend, or terminate the
institution’s participation in Federal financial aid programs.
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Clery Act
Proposed Rule Amendments
• Expand list of hate crimes to be reported
• Require statement of policy re: emergency response and evacuation
procedure in the annual security report and how it will be annually tested.
• Require immediate notification of campus community upon confirmation of
an emergency or dangerous situation and follow-up information “as
needed.”
• Missing Student Policy and Procedures. Proposed that these be included in
the institution’s annual security report including a missing student
notification system for institutions with on-campus housing.
• Publish annual fire safety report with annual security report to campus
community.
Source: 74 Fed. Reg. 42395 et seq. (Aug. 21, 2009).
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What Liability Do Colleges Have for Campus Violence?
ADA and Rehabilitation Act
• A plaintiff may state a claim for violation of Title II of the ADA by alleging
that
– She has a disability
– She is “otherwise qualified” for the benefit
– She was excluded from the benefit on the basis of her disability
• A plaintiff may state a claim for violation of the Rehabilitation Act (which
applies to programs receiving Federal funds) by alleging that
– The plaintiff is disabled and otherwise qualified academically
– The defendant owns, leases, or operates a place of public accommodation and
receives Federal funding
– The defendant failed to make reasonable modifications that would accommodate
the plaintiff’s disability without fundamentally altering the nature of the public
accommodation.
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ADA and Rehabilitation Act
2008 Amendments
• Expands the class of protected individuals
– The determination of whether an impairment substantially limits a major
life activity may be made without regard to the ameliorative effects of
mitigating measures such as medication, assistive technology, auxiliary
aids or services (excluding eyeglasses or contact lenses), and adaptive
modifications
– An individual who has experienced discrimination “because of an actual
or perceived physical impairment[,] whether or not the impairment limits
or is perceived to limit a major life activity” is regarded as having a
disability.
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ADA and Rehabilitation Act
Psychiatric Disabilities and Preventive Measures
• Although colleges do not need to serve students who present a direct and
imminent threat to self, others or property, because they are “not otherwise
qualified,” institutions will need to be careful to distinguish them on the
basis of individualized and objective assessment, sound evidence of
probable and proximate injury, and consideration of reasonable mitigating
policies, practices or procedures.
• Colleges should be willing “to make modifications in order to enable
students with disabilities to meet … academic requirements,” like changes in
the length of time permitted for the completion of degree requirements,
substitution of specific course required for the completion of degree
requirements, and adaptation of the manner in which specific courses are
conducted.
• An institution is financially responsible for auxiliary aids and services unless
it can demonstrate that the cost is an undue burden.
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College Liability
Other Common Tort Claims Arising from Campus Violence
• When Employees Perpetrate
– Negligent hiring. May arise when college fails to conduct adequate background
check on perpetrating employee.
– Negligent retention. May arise when a college fails to protect others from harm
after they learn of an employee’s propensity to perpetrate.
– Negligent admission or recruitment. May arise when college failed to exercise
reasonable care in admitting a student.
– Negligent supervision. May arise when a college fails to exercise reasonable care
when supervising an employee or student.
• Defamation. May arise when false statements of fact about an alleged
perpetrator are recklessly or excessively published.
• Strict Liability. May arise when employees or students handle obviously
hazardous materials or equipment.
• Invasion of privacy. May arise when backgrounds are investigated.
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College Liability
Other Causes of Action Arising from Campus Violence
• Sexual harassment. Municipal and state law and …
– Title IX. A college that knows or reasonably should know of sexual harassment
against a student must take “immediate and appropriate steps to investigate or
otherwise determine what occurred and take prompt and effective steps reasonably
calculated to end any harassment…and prevent harassment from occurring again.”
– Title VII. Employment discrimination, harassment, and hostile workplace.
• Violence Against Women Act. 42 U.S.C. § 13981(a). Authorizes a federal civil
claim for “victims of crimes of violence motivated by gender.”
• Hazing. Civil or criminal liability under state law may be the basis for an
assumed duty. See Furek v. Univ. of Del., 594 A. 2d 506 (Del. 1990) (imposing
duty on university when fraternity pledge was scarred by liquid).
• OSHA. Employers must furnish a place of employment free from “hazards that are
causing or are likely to cause death or serious physical harm to [its] employees.” 29
U.S.C. § 654(a)(1).
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College Liability
Damages
• Damages may include:
– Lost compensation
– Pain and suffering
– Wrongful death
– Punitive damages
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You Need a Plan!
• Threat Assessment Team
• Emergency Response Plan
• Emergency mass notification and communication system
• Mental health services for students
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Threat Assessment Team
Violence Prevention
• The TAT is a multidisciplinary team including safety, health, and legal
professionals who are trained regarding privacy and information sharing
laws such as FERPA and HIPAA
• The TAT
– Adopts a policy outlining how and to whom faculty and staff should refer
students who may be threatening
– Educates faculty, staff and students about recognizing and responding to signs
of mental illness and potential threats
– Supervises multiple reporting systems to enable the reporting of threatening
behavior anonymously and conveniently
• Seek Memorandum of Understandings or Mutual Aid Agreements with
– Mental health providers to provide enhanced access to mental health services
– Law enforcement agencies
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Threat Assessment Team
Attorneys and Campus Security
• A leading campus violence report explains why legal counsel should
be consulted in drafting campus security documents and participate
in the TAT:
Attorneys can play an integral role in threat assessment and violence
prevention and should be involved early in the process of dealing
with more severe and credible threats. These professionals are
familiar with privacy and confidentiality issues. They can also
facilitate obtaining judicial injunctions and Temporary Restraining
Orders, and assist in preparing legal documents to handle
potentially dangerous persons or situations.
Campus Violence Prevention and Response: Best Practices for
Massachusetts Higher Education (June 2008).
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Mass Notification and Communication System
Emergency Use Policy
• Emergency notification system (redundant electronic, audio and visual
systems)
– The kinds of events that would initiate the system
– Procedure to confirm significant emergency or missing student
– Who is authorized to launch the system
– Procedure to determine the appropriate segment or segments of campus to
receive notice
– Procedure to determine content of notice
– Procedure to initiate notification
– Personnel assignments
• Coordination with police, fire and rescue
– Familiarity with the National Incident Management System (NIMS)
– Interoperable communications among response agencies
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Other Recommended Steps
Security Plan
• Inquire of school applicants about unusual academic histories, criminal records, and
disciplinary actions.
• Include public safety as part of the school orientation process
• Conduct annual vulnerability assessments of the campus and regular reviews of the
ERP
• Enhance physical security measures
– Repair and replace exterior doors
– Install CCTV cameras and electronic access control systems
– Ensure adequate campus safety staffing
• Drill emergency preparedness
• Establish a trained behavioral health Trauma Response Team
– Plan for victim services in the aftermath of a tragedy
– Develop communications protocols
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Solutions
Follow the Plans
• The worst plans are the ones not followed.
– Broward County Sch. Bd. v. Ruiz, 493 So. 2d 474 (Fla. 4th DCA 1986)
(school’s own recognition of need for supervision in cafeteria area
after school as evidenced by adoption of comprehensive system of
supervision and patrols designed to prevent students from being left
alone on campus was evidence on issue of duty to provide supervision
when student was assaulted)
– Rupp v. Bryant, 417 So. 2d 658, 669 (Fla. 1982) (“Not only was the
harm foreseeable, but the school had actually anticipated it through
regulations which it failed to follow.”)
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Questions?
• Nathan “Nate” A. Adams, IV
Partner, Holland & Knight, LLP
– 850-425-5640
– [email protected]
• This material is for informational purposes only. It is not
intended to give specific legal or risk management advice, nor
intended to address all possible risk management exposures or
solutions. If you would like specific legal advice for your
institution, you should retain the services of qualified counsel.
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