SECTION VI: LIABILITY ISSUES IN AN EDUCATIONAL SETTING

INTRODUCTION

Issues of liability and negligence are extremely complex. The information covered in this document is very generic, limited, and not intended to be inclusive. It is imperative that you direct any specific questions or concerns to your administrator.

The majority of regulations (e.g., WISHA) which "drive" environmental health and safety deal only with workplace settings and the employer/employee working relationship; you will not find reference to students (exception: work study students are our employees) in the WAC standards and codes. This does not, however, mean that students at CCS have no recourse under the law in the event of an injury suffered in the educational setting during the course of their education.

The law prescribes that the duty a college owes to a student is that required of a business visitor or invitee. The duty owed an invitee by a property owner is that of reasonable care in protecting the invitee from injury due to negligence or intentional act. This includes maintaining the premises in a reasonably safe condition, or warning the invitee of any danger which is known or discoverable by a reasonable inspection on the part of the occupier.

STANDARD OF CARE

The applicable standard of care that is appropriate and defensible conduct in any given instance will be determined by the facts of the situation and by the laws which govern that activity. One category of tort law penalizes negligence, a kind of substandard behavior. Essentially, the law of torts imposes a duty to exercise a level of care commensurate with the apparent risks involved. The greater the risk or hazard, the more careful one must be. By this standard, the issue of negligence turns on what a prudent person would do under the same or similar circumstances, assuming those practices which are customary and usual in the industry.

NEGLIGENCE

In the eyes of the law, negligence may be defined as "conduct that falls below a standard of care established by law to protect others against an unreasonable risk of harm." In other words, negligence may be construed to have occurred when one's failure to perform causes unintentional injury to a person who was owed a standard of care. If the standard of care has not been specifically established by statute, the actions or inactions of an individual will be measured against what a hypothetical, reasonably prudent individual would have done under the same circumstances. One important aspect of the conduct of the reasonable person is anticipation. A reasonable person is expected to be aware of the foibles of human nature and be able to anticipate where difficulties might arise.

To constitute actionable negligence there must be:

1. a situation giving rise to a legal duty of care,

2. failure to perform that duty on the part of the defendant,

3. injury and/or damage as a result of that failure to perform.

It is not negligence or a breach of the duty of care on the part of school authorities to permit a potentially dangerous student activity:

1. suitability: if it is suitable to the student’s age and condition (mental/physical)

2. training: if the student is progressively trained and coached to do the activity properly and avoid the danger

3. equipment: if the equipment is adequate and suitably arranged

4. supervision: if the performance, having regard to its inherently dangerous nature, is properly supervised, and

5. warning: if the student has been appropriately warned of dangers.

The standard of care expected of instructors is that of a "reasonable and prudent professional." This means that the individual must have the competence for the role he/she is performing and is expected to be up-to-date on the "best practices" of the profession.

Courts will hold that the individual must perform as if he/she were fully qualified to do that which he/she has undertaken; that is, he/she must perform in a professional manner. The principles of professional conduct can be divided into three categories; supervision and training (including reasonable warnings given, both verbally and in writing), conduct of the activity, and environmental conditions--maintenance of the physical environment for safety purposes, including equipment, facilities, and areas.

POTENTIAL DEFENDANTS

Liability may attach not only to the institution but also to its officers and employees, in both their official and individual capacities. Therefore:

1. The institution may be held liable for claims arising from actions of its employees and agents while acting in good faith during the performance of functions within the course and scope of their employment.

2. Officers and directors may be held liable for claims arising from an institutional activity over which they have a reasonable degree of control.

3. Mid-level managers may be held liable for claims arising from activities for which they have responsibility.

Other employees may be held liable for claims arising from transactions in which they participated.

DEFENSES

The first defense, which is also the best defense, is that there was no negligence, and that in fact, because of adequate training, warning, supervision and environmental conditions, the act was performed according to the appropriate professional standard. It is to that end that the foregoing discussion has been given.

The second primary defense, also previously discussed, is the assumption of risk by the participant. However, it has been indicated that there must be knowledge and understanding of the risk involved in the activity and that the risk assumed is only for those normal risks inherent in the activity which are known and understood. The assumption of risk by a participant does not include risks of inadequate supervision, instruction, warning, defective equipment, or other negligence.

DEFENSE OF STATE EMPLOYEE BY ATTORNEY GENERAL'S OFFICE

Employees of Community Colleges of Spokane, in the event they should be involved in a lawsuit having to do with the performance of functions when acting in good faith and within the course and scope of their CCS employment, will be defended by the state attorney general's office.

Per RCW 28B.10.842, and per Master Contract, Article III, Section 15, "CCS agrees to save academic employees harmless and defend from any financial loss, including reasonable attorney's fees, for actions arising out of any claim, demand, suit, criminal prosecution, or judgment by reason of any act or failure to act by such employees within or without CCS, provided such employees, at the time of the act or omission complained of, were acting within the scope of employment or under the direction of CCS....provided the board of trustees has made a finding and determination by resolution that the academic employee was acting in good faith. If the board of trustees is unable to reach any decision on the matter, the office of the attorney general is authorized to consider a request.”