SECTION VI: LIABILITY ISSUES IN AN EDUCATIONAL SETTING

SUPERVISION AND TRAINING

In the instructor/student relationship, supervision and training are closely intertwined. Not only must training and warning of hazards precede supervision, but it is also crucial that training and warning of hazards remain an ongoing element of supervision. Supervision of participants in an activity is one of the critical elements giving rise to lawsuits. Two types of supervision, general and specific, should be distinguished.

General supervision means that an individual must be within the activity area overseeing the activity and given appropriate instruction.

Specific supervision means being at a specific location of activity with the participants. The nature of the supervisory actions is dependent on the type of supervision required. The distinction between the two types is of considerable importance. If you have a physically dispersed class, e.g., with students at work in separate work spaces throughout a large shop area, obviously the instructor cannot be with each individual all the time. When must he/she be directly with the person engaging in activity providing specific supervision and when is general supervision adequate?

GENERAL SUPERVISION

There are two considerations for general supervision:

1. First, the supervisor (instructor) must be immediately accessible to anyone who needs him/her. If injury occurs, some competent person must be secured either to take care of the injured or supervise the participants (students). Further, the supervisor (instructor) must be able to oversee the entire program systematically; that is, rotate to all parts of the activity area. General supervision is not sufficient for hazardous activities.

2. Second, in general supervision, one must be alert to conditions that may be dangerous to participants and warn them of such dangers. A professional should not only be able to identify dangerous conditions and train and warn about them, but also anticipate such conditions and establish accident prevention procedures. These conditions include defective premises or equipment, lack of protective devices or safety equipment, and participants (students) performing tasks beyond their capabilities. Dangerous conditions also include rowdiness and poor discipline. One of the largest awards in legal history for personal injury to a single individual for negligence ($4.25 million) went to a fifth-grade boy who was permanently disabled in a summer recreation program sponsored by a city recreation and park department on a school playground. He was hit on the side of the head by a larger boy during a scuffle over which child was to take a turn at bat in an organized ball game. Bleeding inside the skull resulted in a blood clot forming and exerting pressure on the brain stem, causing muteness and paralysis from the neck down.

SPECIFIC SUPERVISION

Specific supervision involves appreciation of the activity in terms of its inherent hazards and of one's capacity to do the activity, and understanding and adhering to established safety practices and procedures which are appropriate and particular to the activity being undertaken. The first two considerations (as noted below, items [A] and [B]) in regard to specific supervision are parallel:

1. When introducing an activity, the instructor must stay with the student until the student is familiar enough with the activity to evaluate his/her own capacity to do the activity and to understand and adhere to safety practices and procedures which have been established. It is essential that the student be warned of and have full knowledge of the specific risks involved in the activity.

The appreciation of risk is essential both for the safety of an individual and for the use of the defense of assumption of risk in a lawsuit. It has sometimes been said that the participant assumes the risk of the activity, but cases in the 1970s have put a new emphasis on the responsibility for the supervisor of the activity. A participant does not assume any risks he/she is not aware of and does not appreciate. This places the burden on the instructor for training students in a manner that appropriately and clearly communicates the risks involved (warning) and being certain that these are understood by each student (knowledge of the risks involved).

Knowledge of risk, by itself, is not sufficient. It is not sufficient to merely inform or warn of risks in an activity. There must be an understanding and appreciation of that risk on the part of the participant. This appreciation of risk works both ways; that is, the inexperienced participant requires greater effort on the part of the instructor to communicate the risks; on the other hand, if the participant is young but experienced, he/she is held to assume those risks of which he is knowledgeable and should therefore understand.

The risks a student or participant assumes are those normal to the activity itself. These risks must be both known and understood by the individual. An individual has the right to expect that the equipment is not defective, that the safety devices will be adequate, and that the instructions given are correct. When this is not true, these become negligent acts and a person does not assume any risks due to negligence; a person does not give "license" to anyone to be negligent at his/her expense. Too often the signing of a "waiver" by an adult is misunderstood--all such signatures mean is that they will assume the normal risks of the activity. They do not give permission for an instructor to be negligent. While permission slips and waivers are somewhat useful in deterring suits and informing as to what a person will be doing, it is far more important that the individual be adequately trained, supervised, and warned, and that every reasonable effort be made to cause them to understand the risks involved.

2. Parallel to this, when an activity is going on under general supervision of the instructor and he/she notes any failure to adhere to rules and regulations or sees some change in the condition of a participant/student, such as apparent lack of appreciation of dangers, then supervision must be changed from general to specific.

3. There is a further concern regarding specific supervision which relates to safety practices and procedures. Appropriate safety practices and procedures must be established, and these must be particular to the activity being undertaken, rather than generalized safety practices and procedures. That is, although there may be some general regulations in the shop area, there must also be safety procedures specific to certain equipment and activities thereon. Each activity and each piece of equipment has its own requirements, and the person instructing must be familiar with them and must communicate these requirements to their students.

When a new activity is introduced, there must be specific supervision, but as the participant becomes more proficient, general supervision is adequate. If, however, under general supervision some change in the physical or emotional condition that might endanger the individual is noted, or if a violation of safety practices and procedures is observed, then the instructor must immediately give specific supervision until the situation is once again safe.