PE and the Law

1. PE and the Law

2. 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

3. 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?

4. 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)

5. 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

6. United States Constitution • Amendment One • Freedom of Religion, of Speech, and of the Press Students’ 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.

7. United States Constitution • Amendment Four • Security from Unwarrantable Search and Seizure Bodily 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.

8. 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)

9. 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

10. 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?

11. 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

12. Law 101 • Four questions courts use to determine negligence • Duty – did one person owe a duty to another? • Breach – did that person failure to exercise that duty? • Harm – was a person actually injured? • Cause – was the failure to exercise due care the direct or proximate cause of the injury?

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

14. 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

15. 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

16. 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.

17. 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

18. 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

19. 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

20. Preventing Negligence – 1) Supervision 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.

21. 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

22. 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

23. 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

24. 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

25. 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.

26. 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

27. Preventing Negligence – 2) Instruction 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

28. Understanding of Safety Concerns

29. 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

30. 2) Instruction Additional Suggestions 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

31. 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.

32. 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

33. 3) Equipment & Facilities • Keep up to date on current practices regarding facilities and equipment • Soccer goal example • http://www.momsteam.com/sports/soccer/safety/soccer-goalposts-can-be-deadly-hazard • Swimming pools • Use lifeguards to decrease liability • Wet grass outside • Error on the side of caution

34. 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

38. 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 . . .

39. 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)

40. 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

41. 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

42. 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?

43. Sample Injuries from PE • 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

44. 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

45. Additional Cases • Wrestling • Football • Golf

46. 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

47. 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.

48. Teacher Protection Act • http://www.nea-nm.org/ESEA/TPA.htm

49. 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.

50. 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.