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Staying Out Of Court

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DAISY SMITH 2nd graders on a field trip to a secluded beach on the Oregon coast. Smith posed four students on a large log for a photograph, and then a powerful wave unexpectedly swept in and knocked the children down. The log rolled over one student and fractured her skull, causing her to lose hearing in one ear. The girl's parents sued the teacher, charging her with negligent supervision. The courts ruled in the parents' favor and ordered the teacher to pay $6,500 in damages. Even teachers who lack these kinds of protections are not unduly vulnerable since it's very difficult for the parents of an injured student to prove negligence in court. To win a lawsuit, the parents must prove that the teacher breached his or her legal duty by acting unreasonably, that the student was actually injured, and that the teacher's behavior caused the injury. If any of these links is missing, the chain of liability is broken.

In 1986, for example, 110 8th graders in Tennessee took a field trip that included lunch at a restaurant across the street from a public park. After lunch, three students asked a teacher for permission to go to the park. The teacher allowed them to go but warned them to cross the street with care. One of the students was hit by a car. An appeals court ruled that the teacher was not liable. In making the ruling, the judge took into account that the injured student was a mature 13-year-old with no hearing or vision problems and that the street did not appear to be dangerous. It was not unreasonable for the teacher to assume the child could cross the street alone, so there was no breach of duty.

In another case, an Illinois appeals court ruled in favor of two teachers who were sued after chaperoning a field trip of 50 7th graders to a museum where a student was attacked and injured by a group of youths from another school. The court ruling stated: "A teacher cannot be required to watch the students at all times while...engaged in schoolrelated activity. If the law imposed such burdens, it would discourage schools and teachers from affording opportunities to children to enjoy [field trips]. It has long been recognized that something other than classroom teaching is needed for sound education.''

Even parents who can prove that a teacher was in some way negligent won't necessarily win a lawsuit. Teachers have other defenses, including one known in legal terms as "contributory negligence.'' This defense applies when a teacher can prove that the injured student behaved in a careless or foolish manner, contributing to the likelihood that an accident would occur. A number of common-sense factors play a role in determining contributory negligence, such as the age and status of the student and the location and nature of the field trip. If a high school student visiting an amusement park sneaks into the back entrance of the Fun House and trips and breaks his leg, the student's contributory negligence would reduce or eliminate the teacher's liability.

The common defense is "assumption of risk.'' To use this defense, the teacher must show that the student's parents had adequate knowledge of the risks of the trip and voluntarily allowed the child to go anyway. The most common example of the assumption-of-risk defense involves the use of release or permission slips. Although far from foolproof, most permission slips do provide some important protections for teachers. They deter disgruntled parents from asking why they weren't informed of risks before their children were taken on a class trip. The forms may also cut down on the number of lawsuits because parents who believe they have waived their right to sue are less likely to do so. The forms may improve student conduct, as well, since parents may be inclined to reiterate the rules regarding proper behavior on trips. Most importantly, if a consent form specifically states the risks of a field trip and the parents voluntarily grant permission for their child to go anyway, the teacher can use the slip to prove that the parents assumed the risk of the trip if they later try to sue.

The use of a permission slip influenced a Louisiana court's ruling in favor of a teacher at O. Perry Walker High School in Orleans Parish. The teacher was charged with negligent supervision after a 17year-old student dove into the deep end of a hotel swimming pool and drowned during a school field trip to a band festival in Galveston, Texas. The student's parents had given permission for the student to go on the trip and use the pool without telling the school the boy didn't know how to swim. The boy dove into the deep end of the pool voluntarily--and then drowned.

Some schools try to have parents sign blanket waivers of liability, but these are not enforceable in any state. These catch-all waivers state that the parent gives a child permission to go on all trips, releasing the school from all risk. Because they are so broad, they are legally meaningless. That doesn't mean teachers must draft a special slip for every trip. Administrators can prepare fill-in-the-blank forms, which teachers can customize for a particular trip by spelling out the specific risks of the trip. The form should also provide space for a voluntary signature by the parents and the student if the child is old enough. (The legal age of consent for students varies from state to state.)

Although teachers stand little chance of losing a lawsuit, they may lose their jobs if they were actually found to have been negligent. "The real fear of teachers on field trips should not be tort liability, but administrative discipline, including possible dismissal,'' says Kathleen Mehfoud, an attorney who represents several school boards in Virginia. The most frequent cases of teacher discipline arise from overnight trips, when the dangers of drugs and alcohol, sexual misconduct, and transportation accidents are highest. The decision on whether a teacher is fired for incompetence would be based on how badly the teacher neglected to fulfill his or her duties and what the teacher's record was before the incident.

Teachers can protect themselves against liability leading to dismissal by following a few simple tips offered by teachers and administrators from a number of schools:

Specific rules for trips can be sent home with the permission slips, or schools can require parents to attend an orientation meeting. At these meetings, teachers can review the itinerary and the expected code of conduct and explain that students who violate the rules will have to be picked up by the parents or sent home--at their parents' expense.

Teachers can make multiple copies of bus lists so that personnel at the home school and teachers on the trip can keep accurate attendance records. When more than one bus is used, the lists should indicate which students have been assigned to which vehicles.

Students can be required to spend their free time in groups and to check in with the teachers at designated times. Teachers can also distribute wallet-sized cards with the school telephone number and an evening emergency phone number.

Before going on a trip, a teacher should check with the school district's lawyer or another administrator to review teacher liability protection under state law, as well as any school procedure for field trips. Make sure the administration knows about the field trip--and has expressly authorized it.

Perry Zirkel is a professor of education and law at Lehigh University. .

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