"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Friday, January 4, 2013

A Tale of Three Lawsuits

Some of you might recall our discussion back in 2010 of as to exactly what duty schools and school boards have to keep our children (be they typical or challenged in some manner) safe during the school day.

In examining that issue we noted that the duty to keep students safe essentially comes from two difference sources; the Education Act and the duty of care at common law (which simply means judge-based law that is not found in legislation).

This means that in addition to the duty under the Education Act to take all reasonable steps necessary to create and maintain an orderly and safe learning environment and "attend to the health, safety and comfort of students", 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", a higher standard of care from normal negligence cases involving adult defendants -  the educator must not just act as a reasonable person but as a "reasonably careful or prudent parent:".

Expanding a bit on our previous discussion, today I came across an interesting article written by an American "education expert" on this very topic. And while you might question the relevance of something written from the American perspective, the fact is that the common law duty applicable in the US is very similar (if not identical) to that in Nova Scotia. The reason being that although the legislation is often very different in the two countries, the US inherited its common law from Britain, just as we did.

In any event, the article examines the exact same legal issues we previously discussed (educators standing in loco parentis, the standard of the reasonable and prudent professional and the test of foreseeability) and then applies these principles to three different real-life fact situations where (typical) students were injured at school.

In two of the three cases, the schools were found liable for the student's injuries. Can you guess in advance which ones involved liability?

3 comments:

Deb Reynolds said...

Fascinating--I guessed right, even though the essential facts which determined each case were not listed in the beginning explanation. Good one, thanks!

San Francisco Lawyer Jobs said...

I always love the way that you explain things to others... Great content you have here.

MMC said...

Thanks, San Francisco. Hope to see you around again.