Transcript Risk Management: Creating a Safe Environment

Risk Management:
Creating a Safe Environment
Learning Outcomes
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Students are able to:
Describe the concept of in loco parentis as relates
to duty and standard of care
Identify the coverage areas for managing risk
Recognize the importance of due process in
handling student discipline
Explain the criteria to be prudent, reasonable, and
foreseeable in avoiding negligent tort
Analyze cases to determine liability of educators
What is Risk Management?
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Risk management is a coordinated, effective, pre-response
and post-response to a school’s district’s liability exposures
developed through planning, organizing, directing, and
monitoring a district’s activities and assets
Risk management is the process of minimizing accidental
loss by anticipating and preventing the occurrence of
unplanned events
Ingredients for risk management: Authority,
Accountability, Responsibility, and Training (AART)
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Principles of in loco parentis
Definite responsibility to the school for the welfare of each
student it serves in the absence of the student’s parent or
guardian
The student’s interests, welfare, and safety are directed by
responsible adults trained as teachers and administrators
Duty and standard of care by educators
Components of Risk Management
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Risk identification
Risk assessment
Risk Control
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Risk identification
Implementation of safety campaigns, safety
instruction, warning signs, and maintenance
carried by schools and etc.
Risk assessment
Periodic check-ups on electrical wiring and
appliances, plumbing and sewage systems, fire
drills, conditions of physical structures staircases,
grilled windows and laboratories
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Risk control
Safety procedures such as the use of log books for
recording past accidents, list of emergency
telephone numbers, fire extinguishers and first aid
boxes
Why do we need risk management in schools?
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It is not managerially possible for schools to completely
eliminate risks nor fiscally prudent to insure potential risk
Schools cannot avoid accountability for its actions or
inactions
A well-planned, active program of risk anticipation and
prevention is more preferable (a pro-active approach)
What does it include?
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Student and staff safety
Health
Child abuse/abduction, drug testing, drug testing and
student athletes, drug testing and employees,
students/employees with Aids
Chemical safety
Environmental affairs
Property protection
Contingency planning
Security
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Transportation
Third party liability
Contractual liability
Implications for Risk Management
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Accidents, incidents, or transgressions are organizational
managerial problems, not people problems. They are often
dealt with ex post facto rather than through active program
of risk anticipation and prevention
Insurance should be thought of only as financial protection
for unexpected failure in risk management programs, not
as the sole remedy for all accidental loss
Risk factors diminish with the expansion of the practice of
prevention law:
The lower the knowledge of legal procedures and the
practice of judgment and foreseeability is, the higher the
incidence of liability, environmental, and personnel loss
Effective risk management requires effective leadership
Due Process
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There are two kinds of due process:
Procedural due process
Substantive due process
Procedural due process
It entails fair warning and fair hearing
Fair warning: A person must be aware of the rules to
follow, or behavior that must be exhibited, and the
potential penalties for violation
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Fair hearing
The individual must be given written statement of the
charges and the nature of the evidence
The individual must be informed of certain procedural
rights
Adequate time must be provided to prepare a defence
There must be an opportunity for a formal hearing
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Substantive due process
It is concerned with the basic legality of a legislative
enactment
Guideline to ensure substantive due process:
Legality
Sufficient specificity
Reason and sensibleness
Adequate dissemination
Appropriate penalties
Landmark Cases
Goss v. Lopez (1975) Due Process
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Nine students at an Ohio public school received
10-day suspensions for disruptive behavior
without due process protections. The Supreme
Court ruled for the students, saying that once the
state provides an education for all of its citizens, it
cannot deprive them of it without ensuring the
process protections
Brown V. Board of Education (1954)
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The court declared state laws establishing
separate public schools for black and white
students unconstitutional. The decision
overturned the Plessy v. Ferguson decision
of 1896 which allowed state-sponsored
segregation. This ruling paved the way for
integration and was a major victory of the
civil rights movement
Goss v. Lopez (1975)
Freedom of Speech at School
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In December 1965, John and Mary Beth Tinker and their
friend Chris Eckhardt wore black armbands to school in
Des Moines, Iowa, to protest the war in Vietnam. School
officials told them to remove the armbands, and when they
refused, they were suspended (John, 15, from North High;
Mary Beth, 13, from Warren Harding Junior High; and
Chris, 16, from Roosevelt High). With their parents, they
sued the school district, claiming a violation of their First
Amendment right of freedom of speech.
Court ruled in favor of the student
New Jersey v. T.L.O. (1985)
Privacy Rights at School
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T.L.O. (Terry), a 14-year-old freshman at Piscataway High
School in New Jersey, was caught smoking in a school
bathroom by a teacher. The principal questioned her and
asked to see her purse. Inside was a pack of cigarettes,
rolling papers, and a small amount of marijuana. The
police were called and Terry admitted selling drugs at
school.
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The Supreme Court ruled in favor of the school.
Ingraham v. Wright (1977)
School Discipline
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James Ingraham, a 14-year-old eighth-grader at Drew
Junior High School in Miami, was taken to the principal's
office after a teacher accused him of being rowdy in the
school auditorium. The principal decided to give him five
swats with a paddle, but James said that he hadn't done
anything wrong and refused to be punished. He was
subsequently held down while the principal gave him 20
swats.
While corporal punishment was permitted in the school
district, James suffered bruises that kept him out of school
for 10 days and he had to seek medical attention. James
and his mother sued the principal and other school
officials, claiming the paddling violated Eighth
Amendment protections against "cruel and unusual
punishments."
The Supreme Court ruled against James.
Vernonia School District v. Acton (1995)
Student Athletes and Drug Testing
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James Acton, a 12-year-old seventh-grader at Washington
Grade School in Vernonia, Oregon, wanted to try out for
the football team. His school required all student athletes
to take drug tests at the beginning of the season and on a
random basis during the school year. James's parents
refused to let him be tested because, they said, there was
no evidence that he used drugs or alcohol. The school
suspended James from sports for the season. He and his
parents sued the school district, arguing that mandatory
drug testing without suspicion of illegal activity constituted
an unreasonable search under the Fourth Amendment.
The Supreme Court ruled in favor of the school district.
Surat Pekeliling Ikhtisas
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Bil. 6/68
Pembuangan murid-murid daripada sekolah rendah kerana kelakuan curang
Bil. 6A 1975
Disiplin murid-murid menghisap rokok
Bil. 2/1976
Potongan rambut murid-murid
Bil. 8/1983
Mengenakan hukuman biasa terhadap murid-murid yang melakukan perbuatan
salah laku yang tidak dinyatakan dalam peraturan-peraturan pelajaran
Bil.3 1993
Lapor kepada polis salah laku yang berbentuk jenayah
Bil. 7/1995
Tatacara mengenakan tindakan dan hukuman terhadap pelajar-pelajar sekolah
Tort (Tortus in Latin)
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Tort is an actionable wrong, exclusive of a breach of contract, that the
law will recognize and set right. A tort is a legal wrong against the
person, property, or reputation of another (Tort ialah satu perbuatan
salah di mana mangsa mengalami kecederaan fizikal, reputasi atau
pada hartanya)
Classification of tort:
The direct invasion of some legal right of the individual (e.g. invasion
of privacy)
The infraction of some public duty by which special damage accrues to
the individual (e,g, denial of constitutional right)
The violation of some private obligation by which damage accrues to
the individual (e.g. negligence)
Negligence is the primary basis of tort liability suits filed against
school districts (Kecuaian merupakan asas kepada dakwaan liabiliti
yang dikemukakan terhadap ke atas sekolah)
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Kecuaian sebagai satu “tort”
“Kecuaian bukan setakat tidak mengambil peduli
atau perlakuan chuai … tetapi menampilkan
konsep yang kompleks mengenai kewajipan,
kemungkinan dan kerugian yang dialami oleh
seseorang” (Hakim Lord Wright, 1934)
Two Major Categories of Torts
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Intentional Tort
Refer to offenses committed by a person who
attempts/intends to do harm
Intent refers to the awareness that injury will be the result
of the act
A common type of intentional tort is assault or battery
Assault refers to an overt attempt to physically injure a
person/create a feeling of fear and apprehension of injury
No actual physical need to take place for an assault to take
place
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Battery is an intentional tort that results from
physical contact
A person threatens another causing apprehension
and fear (assault) + actually strikes another person
and result in injury (battery) = International tort
Contoh Kes
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Seorang guru mendapati dua orang pelajar sedang
bertumbuk dan bertindak untuk meleraikan
mereka. Dalam proses berbuat demikian, salah
orang pelajar berdegil dan mendakwa guru
tersebut telah mencabar hak asasi beliau kerana
memegang tangannya dan memekik “Lepaskan
tangan aku, saya berhak untuk berbuat demikian!”
Bolehkah guru ini didakwa di bawah kesalahan
“assault/battery?”
Compensatory damages vs.
punitive damages
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Compensatory damages: Actual loses (medical
bills, lost wages/income/court costs and the such)
Punitive damages: Monetary awards to punish the
defendants for wrongful actions and deter such
actions in the future
Reasonable/Prudent Person (Orang yang
munasabah/biasa serta waras)
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Negligence is doing something that a reasonably prudent
person would not have done, or failing to do something
that a reasonably prudent person would have done when
confronted by like or similar circumstances
Reasonable/prudent person
The defendant is not identified with an ordinary individual
who might occasionally do unreasonable things, instead,
he/she is identified as a prudent and careful person who is
always up to the standard
(Pengetua/guru tidak perlu wajib menjadi seorang yang
dianggap sempurna tetapi memadai sekadar sebagai
seorang yang munasabah)
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The degree care exercised by a reasonable teacher
is determined by:
Training and experience of the teacher involved
Students’ age
The environment in which the injury occur
The type of instructional activity
The presence/absence of the supervising teacher
Students’ disability (if any)
Duty and Standard of Care
(Kewajipan/Standard berjaga-jaga)
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The concept of “in loco parentis” is to be practiced
Duty is an obligation that derives from the special
relationship between parties such as that between
an employee and a student, the
district/government and an employee, or the
district and a patron.
The duty to protect is part of
teachers’/administrators’ responsibilities
Standard of care is relative to the need and the
occasion, what is proper under one circumstance
may be negligent under another.
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The standard of care imposed upon school
personnel in carrying out this duty to supervise is
identical to that required in the performance of
their other duties. This uniform standard to which
they are held is the degree of care which a person
of ordinary prudence, charged with comparable
duties, would exercise under the same
circumstances. (California Supreme Court)
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Duties include, but not confine to the following:
Adequate supervision
Maintenance of equipment and facilities
Heightened supervision of high-risk activities
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(Pentadbir dan guru di sekolah berada di bawah satu
kewajipan bertindak secara good faith terhadap majikan
mereka)
Isu mengimbangi kewajipan berjaga-jaga dengan
keperluan memberi peluang kepada pelajar untuk
memajukan kebolehan bertanggungjawab terhadap
keselamatan diri sendiri
Kewajipan berjaga-jaga kepada pelajar oleh pihak sekolah
terdiri daripada dua aspek:
Memberikan penyeliaan yang cukup
Menyediakan tempat dan kemudahan serta alat sekolah
yang selamat
Duty and Standard of Care and
Student Age
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Two age levels are significant in terms of court
decisions: Ages 1 – 14 and Ages 15 – 18
Dunklee and Shoop (2006) believe that the
required degree of duty and standard of care
decreases during the elementary school years
The onset of puberty and adolescence may require
a return to maximum levels of duty and standard
of care during the middle school years, and that
the required level decreases progressively for
senior and high school students
Foreseeability
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Foreseeability is the degree to which the defendant could have or
should have reasonably been able to anticipate the risk of injury /harm
to the plaintiff that might result from the action/inaction (Alexander &
Alexander, 2002)
Foreseeability regarding the risks in an educational setting is greater
due to educators’ superior knowledge, special skills, and professional
experience
If a school administrator/teacher could have, or should have, foreseen
or anticipated an accident, the failure to do so may be ruled negligent.
The concept of foreseeability expects school employee to perform as a
reasonably prudent person of similar training and circumstances could
perform.
If the ordinary exercise of prudence and foresight could have
prevented an accident, the courts have ruled schools to be negligent
when they have not avoided a foreseeable danger to students or adults.
Types of negligence
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Nonfeasance: Failing to act when there is a duty to act
Misfeasance: Acting, but in an improper manner
Malfeasance: Acting, but guided by a bad motive
Prerequisites for a negligence action:
The defendant must have duty to plaintiff
The defendant must have failed to exercise a reasonable standard of
care in his/her actions
The defendant’s actions must be the proximate cause of the injury to
the plaintiff
The plaintiff must prove that he/she suffered an actual injury
1.
2.
3.
4.
Empat syarat untuk plantif menuntut ganti rugi
terhadap defendan
Kewajipan berjaga-jaga yang sedia ada
Kewajipan dimungkari akibat defendan gagal
mematuhi tahap berjaga-jaga yang diperlukan
(berdasarkan ujian orang yang munasabah)
Kemungkiran kewajipan oleh defendan
menyebabkan plantif mengalami kecederaan
Terdapat satu perhubungan yang rapat antara
kemungkiran dengan kecederaan plantif
Contributory Negligence
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The injury is caused by student’s own negligence
(need to be proved) then it is considered that the
student has contributed to his/her own injury
When a student disregards the instruction,
warning,/advise of an educator, the student can be
held liable for his/her own injury
The courts (to date) have held that children under
the age of 7 may not be held responsible for their
own negligence
Common conditions resulting
in tort reliability for negligence
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Failure to provide adequate supervision (foreseeability + proximate
cause (refer to case 1), general and specific supervision (refer to case
2)
Foreseeability: If the school district could have, should have, foreseen
or anticipated an accident, the failure to do so may be rule negligent
Failure to aid the injured/sick
Creation of further damage through misguided efforts
Permitting students to play unsafe games
Permitting use of defective equipment
Maintaining attractive nuisances (unprotected, unguarded, unsafe
condition that attract a child to play – refer to case 3)
Failure to provide adequate instruction
Failure to give adequate warning
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Entrusting dangerous devices to students incompetent to
use them
Taking unreasonable risks
Improper organized field trips
Cases
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Case 1
A student was hit by a bat swung by another student. The
teacher then was standing 30 feet away, passing milk, at
the time of accident. Was the teacher liable?
Case 2
A six year old student was injured at a construction site
next to an elementary school where remodeling was being
done. School officials knew of the potential dangers at the
site and reminded students daily to stay away from the
area. No other precautions to protect students were taken.
Was the school liable?
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Case 3
A young girl, who sustained an injury while watching a
baseball game. While playing around an abandoned longjump pit, she was frightened by a dog. She fell backward
and cut her hand on a piece of broken glass in the pit that
had been covered by sand. The girl presented evidence
that the school knew of the dangerous condition as the
school’s janitor and school authorities had received written
notification of the condition of the pit. Was the school
liable?
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Case 5
Cliff Brown, a fifth-grade teacher, was standing at the front
of his class when there was a knock at the door. He
opened the door to find a person he vaguely recognized.
She said her name was Mrs. Parson and she needed to take
her son Brian to the dentist. Brian got his books, left, and
was never seen again.
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Safety issues
Releasing a child to an adult
School personnel should be very cautious about the physical custody
of children
Who has the parental right?
The legal parent is that person whom the legal system recognizes as
having the legal rights of parenthood
How about child born to biological parents who are not married?
In the case of divorce, it depends on whether the court grants sole/jount
custody
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Case 6
A high school band member, drowned in a hotel pool while
on a trip with the band. The student dove in the pool and
minutes later was found at the bottom of the pool. Two
chaperons assigned to supervise the pool activity
immediately provided mouth-to-mouth resuscitation and
continued to do so until the ambulance arrived. The
parents of the student claimed the school was negligent in
failing to provide adequate supervision for their son, who
did not know how to swim.
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Case 4
A student fell into a ditch while attempting to catch a pass
in a game of football played during the school’s lunch
period. The principal was aware of the ditch on the
school’s property but had made minimal attempts to warn
students and no attempt was made to fill the pitch
Types of negligence
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Omission
Harm occurs due to the lack of care the law expects of a
reasonable individual (e.g. nonfeasance)
Commission
Taking an improper action when there is a duty to acat
Misfeasance may be either an act of commission or an act
of omission
Waiver of liability (permission slips)
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Don’t rely on waivers because parents cannot waive their
children’ claims for damages
Waivers are useful for public relations purposes
It is not true under the law that a waiver of liability truly
protects the school or the teacher from court action
Schools cannot be absolve of their obligation toward
students by a parental waiver or release
Parental waivers/permission slips do not relieve
teachers/schools of liability if they fail to discharge their
duties in an appropriate manner
Safety Issues
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Abuse of students
School Violence
Gang behaviors
Search and seizure
Abuse of Students
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Teacher-to-student sexual abuse is a serious problem
It happens on a continuum of “unwanted touching” to
sexual relationships and serial rape
Other adults involved include principals, janitors, bus
drivers, and librarians
The abuse include: overly affectionately behaviors,
inappropriate, noneducation-related contact, and
inappropriate nonprofessional behavior
Examples
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A teacher (male) had his arm around a girl student
in a shopping mall
Teacher telling sexually explicit jokes in class
Personally taking young kids (first graders) to the
restroom
School Violence
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Gang behaviors
Policy regarding Gang Activity (Developed by the
Midlothian, Illinois School Board)
No student on or about school property or at any school
activity shall:
Wear, possess, distribute, display or sell any clothing,
jewelry, emblem, badge, symbol, sign, or other things that
is evidence of membership or affiliation in a gang
Commit any act or omission or use any speech either
verbal or nonverbal (gestures, handshakes, etc) showing
membership or affiliation in a gang
Use any speech or commit any act or omission in
furtherance of the interests of any gang/gang activity,
including but not limited to:
A. Soliciting others for membership in a gang
B. Requesting any person to pay protection or otherwise
intimidating or threatening any person:
C. Committing any other illegal act or other violation of
school district policies
D. Inciting other students to act with physical violence
upon any other person
Kategori Kesalahan Pelajar
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Kategori:
Kesalahan berat
Kesalahan sederhana
Kesalahan ringan
Kesalahan biasa
Dokumen rujukan untuk menangani disiplin pelajar:
Ordinan Pelajaran 1957
Peraturan-peraturan Pelajaran (Disiplin sekolah)1959
Akta Pelajaran 1961/1996
Pekeliling Ikhtisas KPM
Buku-buku peraturan yang berkaitan
Surat Pekeliling Berkaitan
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Bil. 16/98
Menangani kegiatan genster di sekolah
Bil. 6/2000
Menangani masalah keselamatan, dadah dan
genster
Bil. 11/2000
Membanteras jenayah di kalangan murid sekolah
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Search and seizure
Balancing the school’s legitimate need to obtain information and the
students’ right to privacy
A search shall be initiated by reasonable suspicion (less rigorous than
probable cause required by a police officer)
Level of suspicion varies on the circumstances or the situation (in case
emergency)
Source reliability
Scope of the search: degree of intrusiveness from search of a locker to
a strip search
Reasonable suspicion vs. common sense
Lockers remain the exclusive property of the school (fairly low degree
of suspicion is needed)
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Bookbags and purses
Requires a higher standard of protection for students,
therefore school authority must exercise greater care
Strip searches
The most controversial search
The courts have generally condemned strip searches in
public schools
A body cavity search is the most intrusive type of search
and should not be conducted by school employee
Student Discipline: Corporal Punishment
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Corporal punishment and intentional torts
Due process: Procedural and substantive due process
Corporal punishment is physical punishment applied to modify
behavior
The use of corporal punishment is based on the concept of in loco
parentis
School officials have broad authority to control the conduct of
students, to take responsibility for conduct, and to punish misconduct
that has a negative impact on the school where school-related activities
are concerned (Dunklee & Shoop, 2006)
Corporal punishment must be differentiated from assault and battery
Assault v. Battery
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Assault is the intentional thereat of harmful or offensive
contact. The words must be accompanied by some overt
act, no matter how slight, that adds to the threatening
character of the words
Battery is the actual intentional infliction of harmful or
offensive bodily contact. It is the intent to make contact
and not intent to make injury.
For example, a teacher has intended only to threaten a
student by grabbing the student’s arm and accidentally
injures the student
Surat Pekeliling Ikhtisas Bil. 10/2001
Semua Guru adalah Guru Disiplin
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3. …semua guru telah diperuntukkan dengan tanggungjawab untuk
memastikan murid-murid mempamerkan tahap disiplin yang tinggi.
…Pendekatan-pendekatan berbentuk pencegahan (preventive), didikan
(educative), pembetulan (corrective), dan bukan hukuman (punitive)
serta langkah yang sewajarnya hendaklah dilaksanakan terhadap
semua masalah disiplin. Guru-guru hendaklah sentiasa mengimbangi
semua pendekatan tersebut dengan sifat-sifat prihatin, penyayang,
simpati dan empati terhadap masalah yang dihadapi oleh murid.
Sementara itu, kebenaran bagi guru-guru melaksanakan hukuman
terhadap kesalahan disiplin murid hendaklah dibuat secara nyata dan
bertulis, iaitu pengetua/guru besar perlu menyediakan surat penurunan
kuasa kepada guru-guru untuk melaksanakan hukuman tersebut.
Corporal Punishment
Hukuman Dera
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Pengertian Hukuman Dera ‘corporal punishment’
Hukuman dera (rotan) boleh dikenakan (kecuali ke atas murid-murid
perempuan) tertakluk kepada syarat-syarat yang dinyatakan dalam
Peraturan-peraturan Pelajaran (Disiplin Sekolah) 1959.
Dijalankan sebaik-baik sahaja sesuatu salah laku itu dilakukan oleh
murid. Hendaklah dibuat setelah sesuatu salah laku telah dapat
disahkan.
Dijalankan oleh Pengetua / Guru Besar sendiri atau oleh seorang guru
yang berdaftar yang telah diberikan kuasa secara nyata atau khas iaitu
mengikut keadaan [Perkara 6 Ordinan Pelajaran, 1957, Peraturanperaturan Pelajaran (Disiplin Sekolah) 1959].
Hukuman dera hendaklah dijalankan dengan menggunakan rotan
ringan dan pukulan rotan hanya boleh dibuat pada tapak tangan atau di
bahagian punggung yang berlapik. Hukuman dera ke atas pelajar
perempuan dilarang secara nyata dalam [Perkara 5 Ordinan Pelajaran,
1957, Peraturan-peraturan Pelajaran (Disiplin Sekolah) 1959
Surat Pekeliling Ikhtisas Hukuman Dera
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Surat Pekeliling Ikhtisas Bil. 1/1972 Peraturanperaturan (Tatatertib Sekolah) Pelajaran, 1959
Guru Besar diberi kuasa mengenakan hukuman
dera (Corporal Punishment) terhadap murid-murid
lelaki dengan menggunakan rotan kecil atas tapak
tangan atau punggung yang ada pakaian.