PE and the Law

How did we get where we are today?

Not much case law in early 1900s In 1940s and 1950s began to deal with safety of

facilities and equipment 1960s began Era of Growth and Change 1970s was “me decade” and people became

more aware of rights 1980s decade of greed

Media, lawyers, government immunity eroded

Where we are today? : Captions of Cases Pool Drain Case Settled for $30.9 Million Fall Off Jungle Gym: $500,000 Settlement Deaf Lifeguard Sues for $20 Million Failure to Warn Results in $3,500,000 Injured Student Sues for $52 Million: Awarded

$13 Million

Average injury award is over $1.5 Million

How can we explain this?How can we explain this?

Q&A

What has wrought these changes? Some say society has lost sight of

responsibility, everyone is looking for someone else to blame Positive Outcome: more attention to safe

practices and focus on how we treat people Playgrounds, called games, bomb threat

High standard of care In loco parentis = in place of the parent(s)

Legal Framework

Laws are like living organisms, they change and adapt over time

Kinds of law – what are there? Common Law = Case Law

Precedence serves to create boundaries for future cases Statutory Law

Passed by legislative bodies Adopted by all forms of government

Constitutional Law – embodied by United States Constitution

United States Constitution Amendment One

Freedom of Religion, of Speech, and of the PressStudents’ rights do not stop at the doors of the school

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

United States Constitution Amendment Four

Security from Unwarrantable Search and SeizureBodily fluids – Drug Testing

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searchers and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath, or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

United States Constitution Amendment Ten

Powers Reserved to States or People

Education becomes right of state

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.

(Note: The first Ten Amendments, popularly known as the Bill of Rights, were proposed by Congress, September 25, 1789, and were ratified by the last necessary State December 15, 1791)

Law 101

Types of courts U.S. Supreme Court Federal Courts of

Appeal Federal District

Courts State Courts Court of Claims Court of Military

Appeals Court of International

Trade

Law 101

Types of cases: Civil case (tort case) - A tort is a civil action brought by

one party against another to redress some wrong committed by the party being sued (the defendant) against the party suing (the plaintiff). Burden of proof is not as high, often monetary compensation Torts go through the state courts

Criminal case - A crime is punishable by loss of liberty or life and is brought by the government against a defendant for violation of that government's laws. Various levels of severity (drug, violent, white color, etc)

Recall the OJ case?

Law 101

Civil Law – a tort (legal action) can be brought for acts of omission (failure to act) or commission (acting improperly) Negligence – failure to act as a reasonably

prudent person would under the same circumstances Nonfeasance – failure to do what is required Misfeasance – doing something incorrectly Malfeasance – doing something illegal

Legal terms for O&A

Law 101

Four questions courts use to determine negligence1. Duty – did one person owe a duty to another?

2. Breach – did that person failure to exercise that duty?

3. Harm – was a person actually injured?

4. Cause – was the failure to exercise due care the direct or proximate cause of the injury?

Negligence

Definition - failure to act with the prudence that a reasonable person would exercise under the same circumstances From wordnet.princeton.edu

Defenses for Negligence

One of the elements missing No duty, no breach of duty, cause could not be

established, no injury, just accident Contributory Negligence Comparative Negligence Assumption of Risk Act of God Immunity

Contributory Negligence

Was the plaintiff at all at fault, or contributed to accident? The older the student, the easier to show

contributory negligence, should have appreciated the danger of situation

Comparative Negligence Court will divide responsibility among the

parties involved Assessment of negligence on either side EXAMPLE: If $100,00 and plaintiff is 40% at fault,

then will get $60,000 Arnold vs. Riddell regarding football helmet

C4/C5 spinal fracture after helmet to helmet collision. Shock attenuation system was defective.

Assumption of Risk Inherent and Unfortunate VS Unacceptable “Persons have a duty to use reasonable care to

avoid injury to others and may be held liable if their careless conduct injures” Yet, what was the role of the injured and the nature

of sport? Regents of the University of CA vs. Roettgen

Student killed on a rock climbing trip. The Regents was determined to have acted properly

Act of God If lightening strikes without any warning Beyond the control of anybody Unpredictable, uncontrollable acts of nature

Could the defense of an act of God be used for a coach who continued to practice in a thunderstorm?

Football recess story

Good Samaritan Laws Giving first aid (don’t do things not trained for) Different laws among states

Damages

Compensatory damages are compensation for actual losses (e.g., medical bills, lost wages, court costs) while punitive damages are monetary awards to punish the defendants (i.e., persons being sued) for wrongful actions and to deter such actions in the future

Most basic responsibility of teachers is to properly supervise students. That means number one, being there. Number two, attending to your students and not for example, creating a practice plan for your team What about if an office staff worker comes to the

gym during a 2nd grade lesson on body parts and tells you there is an urgent call in the office?

NEVER EVER leave your students unsupervised, you won’t have a leg to stand on.

Preventing Negligence – 1) Supervision

1) Supervision

Supervision is more than just being present Monitor and keep activities within the skill level of

individual students (differentiated instruction) Keep students from participating in unsafe activities Enforce class and safety rules Keep records and be aware of student health status

(particularly IEP’s) Provide spotting and other specific supervision in

activities of elevate risk such as gymnastics and wrestling

1) SupervisionMore suggestions More dangerous an activity, the closer specific supervision

should be Very close supervision is needed when athletes are

performing a skill for the first time Learn to recognize and prevent excessive aggression

If a student is being bullied repeatedly by another student, it is your responsibility to intervene. If all of a sudden the bullied student “snaps,” and punches the other unconscious, you may be partially (contributory) liable. The case would rely on documentation and eye witness accounts.

Establish stop signals

1) Supervision

Supervision varies with: Age and maturity Amount of risk Skill level Preparation of students (1st day, prior experiences?)

What about the locker room? Privacy v. supervision? Case from text

1) Supervision

General = all areas and activities related to the game or activity I had an administrator explain my areas

of supervision as whatever my eyes see and do not see

Specific = the actual game or activity

1) Supervision

Supervision also means allowing others to see you act as a reasonable and prudent professional Advise against, especially for male teachers, being

alone with a student (office, equipment room, etc). In such instances, it is your word against yours. Either way you will lose, if not legally, personally. At the minimum, leave the door open

Totally fictitious claims have been brought against teachers due to attractions, grades, and malice.

1) Supervision

Neal vs. Fayette County Board of Education

5th Grade PE Basketball Unit Case: Partially amputated finger while dunking b-ball

during class. Sued on basis that 2 students previously were injured, claiming hoop was defective and dangerous, as well as not properly supervised

Ruling: Court ruled for the school. The two previous cases did not prove hoop was defective and also, the teachers warned students not to dunk

Duty to teach appropriate techniques, properly, and include safety rules. Always remember the mantra of “reasonable and prudent”

Failure to Instruct - relates to: Skills and Techniques Methodology

Planning, lessons, rules, facilities, equipment Duty to Warn (if applicable)

Knowledge of risks and benefits of activity

Preventing Negligence – 2) Instruction

Understanding of Safety Concerns

2) Instruction Additional Suggestions Progression of skill development

Levels 1-5 Correct the incorrect

Don’t ignore, rotate giving feedback If a reasonable and prudent PE teacher would have corrected

the mistake, you will likely lose the lawsuit Risk of activity should match the skill level and training of instructor

Don’t get in over your head Use proper and safe equipment including safety devices (masks,

helmets, etc) Sufficient space Don’t “force” a student to perform an activity in which they are

clearly uncomfortable (adventure?) Don’t use exercise as a punishment

Match and Mismatch Pairing of individuals or groups without regard to:

Age Height Weight Skill Maturity Mental State/Disability Experience

Counting off may not be appropriate in some instances Example: steal the bacon

2) Instruction Additional Suggestions

Match/Mismatch: A similar case was heard by a federal district court in Pennsylvania. In Cohen v. School District (1992), a special education student with learning disabilities, behavior problems, and known violent tendencies was mainstreamed without adequate supervision. Without provocation, the student attacked and injured a peer in his classroom. The parents of the injured student sued the school maintaining that the injured student’s rights had been violated. The court held that placing a student with behavior problems in the general education setting is not unconstitutional per se. That is, it is not a violation of law to place a potentially violent student in a general education classroom. The court stated such a placement, however, may result in school officials being held liable if the officials knew that a student with disabilities was violent, and they placed the student in the general education classroom without adequate supervision.

2) Instruction Additional Suggestions

Preventing Negligence3) Equipment & Facilities

Plan for periodic inspections and keep the records

Report deficiencies (broken lock, warped floor, etc) Traceable manner such as email

Advise students of dangers (wet floor) Lock facilities when not in use

If a student gets into an empty gym and injures themselves, you’re at fault

Keep up to date on current practices regarding facilities and equipment Soccer goal example http://www.momsteam.com/sports/soccer/safety/socc

er-goalposts-can-be-deadly-hazard

Swimming pools Use lifeguards to decrease liability

Wet grass outside Error on the side of caution

3) Equipment & Facilities

3) Equipment & Facilities

“Attractive nuisance” – dangerous situation that attracts the attention of youth Applicable to under 14 years old Why most playgrounds have a fence around

them, why equipment is locked up… Facilities Checklist

Tom Bowler Create and post rules/guidelines

Preventing Negligence3) Equipment & Facilities

Everett vs. Bucky Warren – Hockey helmets Ordered dangerous defective equipment When request students to purchase equipment

and they do not – should not allow them to play. DUTY goes beyond just requesting . . . Must

ensure they follow through . . .

Q&A

Injuries WILL OCCUR on your watch, how can your school district prepare for them and prevent further injury once one has occurred

1)

2)

Q&A

Preparation for an injury: Create a risk management plan

Only addition would be the addition of a communication device such as a walkie-talkie or a cell phone (battery)

Sample plan

Instructions for creating a risk management plan

If an Injury Occurs

Summon help Provide first aid

Two common errors is doing too little or too much Make sure CPR and First Aid credentials are up to date It’s a good idea to have one person on staff who is a

CPR and First Aid instructor

Complete an injury report - example REMEMBER, THIS DOCUMENT CAN EASILY BE

USED IN COURT!!!!!! Do immediately before the details become fuzzy

Sample Injuries from PE

Act as “reasonable & prudent” professional Lack of supervision (Ithaca wall partition) Unanticipated performances (diss long jump) Equipment/facilities (pamper pole trapeze) Bee sting (boy’s club) Age appropriate activities (3rd grade BB) W. Hartford Elem (VB standards, equipment on side) Trumbull (crash mat under cargo net) Chenango Forks (arrhythmia while swimming) SSW J. Rose (attendance) – keep records Other cases you’ve heard of?

Gym Teacher Sued by Injured Weightlifter A former student whose eye was injured by a broken exercise

band has sued his gym teacher, reports the Richmond Register.  The incident occurred during a high-school weightlifting class in 2007. 

According to the filing, the plaintiff claims that the teacher failed to supervise the student properly, or to keep the weightlifting equipment reasonably safe. The Richmond Register reported that the student was blinded in the left eye.

Dodgeball – NYS example

Sample Injuries from PE

Sample Injuries from PE By Marc Davis, The Virginian-Pilot TWO YEARS AGO, a 12-year-old girl was hit in the mouth with a baseball

bat during gym class at Landstown Middle School in Virginia Beach. It was an accident. The girl was the catcher, but the teacher had not given

her a mask. As the girl reached for a ball, the batter swung. The bat caught the catcher flush in the teeth.

One tooth was knocked out. Six others were broken. After much dental work, the girl now has a bridge on her top teeth and four crowns below. Her parents, who had no health insurance, paid $8,587 to repair the damage.

http://hamptonroads.com/2007/08/state-law-often-shields-cities-and-schools-being-sued

Additional Cases

Wrestling Football Golf

Liability Insurance

May be included through the school district, the teacher’s union, or a national organization such as the NEA or AFT Often a collaboration between the district’s

teacher’s union and the national organization Private insurance:

AAHPERD http://www.aaeteachers.org/insurance.shtml Examples: 1, 2, 3

Liability Insurance

Non-public school teachers (catholic schools, etc) often do NOT have employer or union provided liability insurance.

Administrators – OFTEN carry additional insurance (more often cited in lawsuits)

As a student teacher, you are insured by the CSU system.

Teacher Protection Act

http://www.nea-nm.org/ESEA/TPA.htm

Sexual Harassment

Student to student sexual harassment CT Commissioner’s Report: “plaintiff would have to

establish that the school board had actual knowledge of the sexual harassment and was deliberately indifferent to the sexual harassment.” Result of 1999 Supreme Court Decision

Sexual Harassment Handout for Students From State of CT Board of Ed

Discrimination Free Schools Policy CT Commissioner of Ed.

Negligence & Coaching

CT Coaching Competencies Extensive

Required training 5 year renewable license

NASPE Coach’s Code of Conduct Good to review whether coaching or the AD with all

coaches These guidelines are published by the state and your

national organization (AAHPERD). Failure to adhere to these guidelines can be used against you. Therefore, it behooves you to follow and familiarize yourself with them.

Duty to Warn - CoachesDO YOU: Warn about dangers of improper techniques? Tell athletes specifically about types of injuries

they could suffer from improper techniques? Warn parents about injuries and consequences

of playing sport? Illustrate these warning with charts or provide

written warnings?

What are the risks in your sport?

Nature of the Game Rules of the Game Playing Environment Playing Equipment

Develop a list of risks in a sport List of HS/MS Activities

Drafting a Written Warning

Use list of risks to draft out a written statement to distribute among athletes

Needs to be adapted so information is clear for the age and experience of athletes

Be concise and honest Review and revise with another coach

HOW will you give the warning effectively? Do not make assumption that athletes

already know Use visual and verbal explanations

See next slide

Using Waivers

Add a waiver at the end of the written statement Similar to “Informed Consent” or “Assumption of

Risk” Signature indicates knowledge,

understanding, and appreciation of risks Willingness to waive legal rights to hold you

legally responsible in event of injury

Why should you NOT rely on a waiver for legal protection?

A minor’s rights cannot be waived. Until a minor reaches legal age, s/he is not mature

enough to fully understand terms Why use waivers then?

Valid agreement, you now have an assumption of risk Yet a signed waiver has been contested in court Acting appropriately in the first place and accepting

responsibility for warning athletes and parents about risks has more protection than trying to claim innocence later

What needs to be included in a waiver?

Who is protected by agreement Need to use language that can be broadly interpreted Avoid statements that are fraudulent Make sure to use proper title Should be a separate sheet and not on a membership form Font should be at least 10 font Language should be clear and bold lettering and a caution

statement, read before signing Signatures should be near the language with a statement

assuring that you have read it

Summary

Legal guidelines from the text Better to be safe than sorry

Note on standing in a doorway

Assignment

Research 2 legal cases online, one related to PE, the other to coaching Post the website link online in Vista under the

legal cases blog (in assignment tab) including your name

Bring a PRINTOUT summary of both cases next class to present/discuss and hand in Include the web address