"So many dreams at first seem impossible. And then they seem improbable. And then when we summon the will, they soon become inevitable."
~ Christopher Reeve

Sunday, August 29, 2010

Christmas in August

It was a warm Sunday afternoon when I sat at my computer, having just completed another blawg post. When what to my wondering eyes did I see but that as part of Blogger's update to their design options, I can now add pages to the blawg with just a click of a button.  It's true - Christmas really has come early!

So now you will see an "About Me" tab on the top of every blawg page.  Click on the link to find out more than you ever wanted to know about your humble scribe. 

And stay tune for more new "pages" to follow - I am hopeful that when the time comes I just might be able to use this new page option as a way of offering the Legal Guardianship Kit for purchase to those who are interested without having to deal with creating an entirely new website. 

For now, I'm keeping my fingers crossed.

Litigation v. Education

The Americans with Disabilities Act is somewhat similar to Canadian human rights legislation in that it prohibits private employers, state and local governments, employment agencies, labor unions and other public entities from discriminating against qualified individuals with disabilities with respect to employment matters and access to services.  Although, unlike our human rights legislation, this particular piece of legislation applies only to individuals with disabilities (defined as "a physical or mental impairment that substantially limits a major life activity").

But it's a nice piece of legislation in that it allows individuals with disabilities who believe that they have been discriminated against direct access to the courts (as opposed to a human rights bureaucracy as is the case with our own human rights legislation).

And yet an interesting situation is developing in Florida where many small business owners feel that they are being faced with the prospect of financial ruin by certain litigants who are using the legislation in a less than honest manner.
Unaware they had any violations and insisting they don't want to discriminate, the business owners say they are served with lawsuits and pressured into settling for thousands of dollars without being given a chance to fix problems.

Vince Pardo, manager of the Ybor City Development Corp., said the plaintiffs tell business owners the same thing: Pay me $15,000 and we're out of your hair.

"That's a settlement," Pardo said
Even some in the disability community are unsure of  these so-called "drive by lawsuits",
"We call them drive-by lawsuits, quite honestly, because we're not convinced they're making the community more inclusive regarding the ADA," said Brenda Ruehl, executive director of Self Reliance Inc., a Tampa-based, nonprofit center for independent living.

Self Reliance refers businesses to certified experts for help complying with the law.

"If it comes to our attention a business is not complying with ADA, we work with that business," Ruehl said. "We have found that is much more productive and encourages people to want to buy into the ADA."

In cases when a business refuses to make changes, she said, the center works with the U.S. Department of Justice to pursue legal remedies.
The flip side of the argument, of course, is that given that this legislation came into force over 20 years ago, can business owners really legitimately argue that they didn't know what is required of them or that they were "caught off-guard" by the lawsuits?  And in a situation where Justice Department and Equal Employment Opportunity Commission lawsuits are scarce, some see private lawsuits as vital to enforcing the legislation.

Still, this story does raise what I see as a very valid issue - when is it in the best interests of the disability community to focus more on education than on litigation? 

Sunday, August 22, 2010

The Duty of Schools "Standing in the Place of Parents"

On the gorgeous North Shore of Cape Breton Island on a lazy Sunday morning a couple of weeks ago, I was roughly jarred out of my vacation-induced reverie by a disturbing article very similar to this one, which I came across in the Chronicle Herald. Although, generally, I try not to read the paper or otherwise expose myself to too much real-world news while on vacation, on that particular Sunday it got away from me.

Be that as it may, the story did remind me that this is an issue we have not yet touched on in this blawg - just what is the duty of the school/school board to keep our children (be they typical or challenged in some manner) safe during the school day?


Duties Imposed by Legislation
The first place to look when assessing legal liability is to see whether there is any relevant legislation on the issue. In this case, the relevant legislation is, of course, the Education Act.

The Education Act imposes certain statutory duties in regards to the safety of students on teachers, principals, board superintendents and school boards.

For example, sec. 26(1) of the Education Act provides that teachers have a duty to both "take all reasonable steps necessary to create and maintain an orderly and safe learning environment" (k) and "attend to the health, safety and comfort of students" (n).

Similarly, one of the duties of a principal is to "ensure that reasonable steps are taken to create and maintain a safe, orderly, positive and effective learning environment" [sec. 38(2)(e)].

Board Superintendents are obliged to "maintain a safe, orderly and supportive learning environment in all schools" [sec. 39] and school boards are obliged to "promote its schools as safe, quality, learning environments and as community resources" [s. 64(1)(f)].


Duty at Common Law
In addition to the statutory duties noted above in the Education Act, the law considers teachers and other educators to have a unique and special relationship with students for the very fact that students are required to attend school.  For this reason, parents are entitled to expect that educators will take reasonable precautions to protect their children from reasonably foreseeable harm.

And because an employer is strictly liable for any torts of its employees committed during the course of their employment, a school board will be legally responsible for any negligence of its employees (be they principals, teachers, educational assistants or other employees) resulting in damages (harm) to a student.

At common law, teachers and other educators are said to stand "in loco parentis" - meaning that they "stand in the place of parents".  Thus, the duty imposed on educators is that of a "reasonably careful or prudent parent in the circumstances".

This is a higher standard of care from normal negligence cases involving adult defendants where the standard of care is that of a “reasonable person in the circumstances" -  the educator must not just act as a reasonable person; they must act like a "reasonably careful or prudent parent:".  This is an objective standard of care against which a teacher’s conduct will be measured.

The concept of foreseeability is central to the standard of care as the duty on educators is to protect students from reasonably foreseeable risks -a "foreseeable risk" is considered to be "a danger that a reasonable person should anticipate as the result from his/her actions".  To foresee is to plan ahead, to anticipate potential risks and to take the necessary steps to address them and, significantly, the test of foreseeability of injury or harm is what is possible rather than what is probable.

And although some activities have an element of inherent danger, allowing students to participate in such activities will not necessarily constitute negligence. However, the teacher responsible for such an activity must exercise a high duty of care.

An example of this can be found in Myers v. Peel County Board of Education where the Supreme Court of Canada was asked to rule on a situation where a 15-year-old (typical) student was seriously injured when he attempted to dismount the rings in a gymnastic class. Attempting to perform a dangerous move without a spotter, he fell and broke his neck, leaving him a paraplegic.

The court held that foreseeability of an accident or injury depends on an accurate appreciation and assessment of these risk factors. And on the facts of this case, the court concluded that the standard of care to be exercised in providing for the supervision and protection of students – that of a careful and prudent parent – was not met as a prudent parent would not be content to provide the protective matting used when other, more protective mats, were available. A prudent parent would also  not permit his or her son to leave the gymnasium to practice potentially dangerous manoeuvres in a room without adult supervision.

The court noted that in the context of schoolyard supervision, in determining the appropriate standard of care in each particular case, factors that a court may consider include:
  • the number of students being supervised at any given time;
  • the nature of exercise or activity in progress;
  • the age of the students;
  • the degree of skill and training that students may have received in connection with the activity;
  • the nature and condition of equipment in use at time; and
  • the competence and capacity of the students involved.
However, the court in Myers went on to find that the student was "contributorily negligent" - or, in other words, “partly responsible for his gymnastics injury" when he attempted to perform "a difficult maneuver, fraught with danger, without announcing his move and without the presence of a spotter in position to break his fall". 

A finding of contributory negligence, in this context, would mean that the student and the teacher have a shared responsibility for the injury. In such a situation, the court will assess a percentage of the damages to each of the parties based on how negligent each was.

Particularly for our purposes, when we are discussing students with various challenges, it is important to realize that contributory negligence is both age and ability dependant.

And that although it is usually age that a court considers (we expect a different standard of care and different ability level when it comes to a 3 year old's actions then we do a 12-yer-old's) when assessing contributory negligence, in the case of a challenged child, the court will be obviously have to look beyond their chronological age to their mental age (in the case of a mentally challenged child) and also how the child's physical disabilities (if any) play into their ability to protect themselves.

But from a legal liability perspective, in order for a person to be found legally liable for injury to another, there must be three elements present - not just a duty of care and a breach of that duty, but also damages/injury resulting from the breach of duty.

Thus, although a teacher (or other educator) may have been negligent, there will be no legal recourse against them unless it is established that

a) the plaintiff has incurred damages (which, in law, can include both physical injury and economic loss);

b) the factual cause of the damages was the failure on the part of the teacher to provide the standard of care that a reasonable person would expect under the circumstances; and

c) the damages were reasonably foreseeable.

So having had this basic primer on the law of a school's duty to protect students, let's take what we now know and apply it to Brenton Organ's situation.

Monday, August 16, 2010

I Wish I Could ... I Wish I Could ...

We just returned from a 10-day vacation to Cape Breton Island a few days ago.

Great trip ... but why does "re-entry" seem to get more and more difficult as the years pass?

Trying to put my brain, house, work and life back in order is definitely going to result in me needing another vacation. On account of my vacation.

I tell you this because I dearly do want to write a new post here. In fact, I even started one while we were away. But severe difficulties with the keyboard of a brand new lap top (!!) resulted in me deciding to finish it when we returned home. Which now I would really like to finish but can't at the moment. See above.

But I will do a little, perhaps, to whet your appetite until I do manage to get back to that post. First, the rather short version of the story. And here, a little more detail. That last link being well worth the read, by the way.

So, then, until we meet again. To discuss the duty of a school and a school board to keep our challenged (whether physically, mentally or both) children safe during the school day.