Request By:
Mr. Bernard R. Bunch, Coordinator
State-Supported Schools Unit
Department of Education
Bureau of Vocational Education
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the coordinator for the state-supported schools unit in the Bureau of Vocational Education, State Department of Education, you have asked the Office of the Attorney General to render an advisory opinion relating to the possible tort liability of teachers. You have asked for special emphasis to be given to the subject of proper supervision of students. Several typical situations are presented in your questions to this office for response:
(1) If a teacher has thoroughly demonstrated the use of all equipment and is adjacent to the classroom working with students on CBVE [Competency Based Vocational Education] and a student is injured by improper use of a machine, is he being properly supervised?
(2) If a student has been thoroughly instructed in the use of equipment and the teacher is elsewhere in the building working on a practical project with another student, are the students remaining in the room properly supervised?
(3) Are students who are left in the classroom while the teacher is in the break-room properly supervised?
Before responding to your questions, we believe it will be beneficial to trace over the legal framework against which such questions must be considered.
A major area of concern and interest for teachers and school administrators is the extent to which they may be held liable as a result of torts. A tort is a civil wrong for which a court will award damages. LeRoy J. Peterson, Richard A. Rossmiller, Marlin M. Volz, The Law and Public School Operation, (Harper & Row, Publishers, 1969), at page 290. "A civil action for a tort is brought by the injured person for the purpose of obtaining from the wrongdoer compensation for the damage he has suffered." Id.
Liability for a tort arises from the legal concept of negligence. A cause of action for negligence is based upon the breach of a duty owed on the part of one person to protect another against injury. 57 Am.Jur.2d Negligence § 32. Thus, three elements are necessary to support an actionable case of negligence:
1. duty,
2. a breach thereof,
3. which is the proximate cause of an injury to another.
The absence of any one of the three elements is fatal to the claim and liability could not be imposed. See Illinois Central Railroad v. Vincent, Ky., 412 S.W.2d 874 (1967). The injured party (the plaintiff) must carry the burden of proof in showing negligence on the part of another.
There exists three questions of law to be decided concerning the above elements involved in actionable negligence. These questions of law were well discussed in a teacher-involved negligence case decided by the Indiana Supreme Court, Miller v. Griesel, 308 N.E.2d 701, 706-707 (1974). We will borrow and paraphrase extensively from that court's opinion.
The first question of law to be decided and probably the easiest one concerning the elements of negligence in teacher-involved cases is whether the law recognizes any obligation on the part of a teacher to conform his or her conduct to a certain standard for the benefit of a student. This question can be principally answered in the affirmative in that school teachers and administrators do have a duty to exercise reasonable care and supervision for the safety and well-being of the children under their authority. The relationship of school pupils and school personnel should call into play the well recognized duty in tort law that persons entrusted with children, or others whose characteristics make it likely that they may do somewhat unreasonable things, have a special responsibility recognized by the common law to supervise their charges. Restatement of Torts 2d § 320; Prosser, Torts, § 33, page 172 (4th Ed. 1971).
The second question of law concerns what standard of care will the courts impose on the relationship once a duty is recognized. The traditional standard to be applied is whether the school teacher or other school personnel exercised their duty with the level of care that an ordinary prudent person would under the circumstances. In that teachers stand in loco parentis, i.e., in the place of the parent, to students who are in his or her care, it has also been said that the standard of care owed to students by a teacher is that standard of care which a parent of ordinary prudence would observe in comparable circumstances.
It must be understood in regard to this second question of law that school teachers and other certified school personnel are not intended to be insurers of the safety of their students, nor are they strictly liable for any injuries that may occur to them. The fact that a student sustains an injury in a school activity does not, in itself, mean that the teacher in charge of the activity will be held liable for injury. Injuries to pupils may result from pure accidents, that is, accidents which occur without negligence. "A pure accident is one which a reasonably prudent person could not have foreseen and avoided by the exercise of reasonable precautions." Peterson, et al, The Law and Public School Operation, supra, at 317. Thus, foreseeability of harm gives rise to a duty to take reasonable care to avoid the harm. The nature of an activity itself (tumbling in physical education) or the instrumentalities with which a student is permitted to perform an activity (circular saw in vocational education) should lead a reasonably careful and prudent teacher to anticipate that a student's safety and well-being is endangered in the performance of the activity. Still the law requires only that a teacher act in the same manner as a reasonable person of ordinary intelligence and foresight would have acted under the same circumstances.
The third question of law is whether the evidence will establish the elements of a cause of action for negligence. Has there been a breach of the duty owed to the student by the teacher which was the proximate cause of a resulting injury? Was the injury the natural and probable result of the teacher acting or failing to act as an ordinary prudent person would have acted under the same or similar circumstances? The answer to this last question will always depend upon the circumstances surrounding the incident in question.
With the above in mind we turn to the issue of supervision. It should be clear that what constitutes due care and adequate supervision cannot be quantified but depends upon the circumstances, such as the number and age of the students, the activity and instrumentalities being used. When students are left without supervision, the duration and the ease of providing some alternative means of supervision are important. Also to be considered is the extent to which a school board has provided and implemented guidelines and resources to assure adequate supervision. See KRS 160.290 and KRS 163.030. A brief review of several reported cases in this area of inadequate or absence of supervision should be helpful.
We can start out by considering two Kentucky cases involving supervision by school personnel. In the one case liability was found against the teacher and no liability in the other. In Cox v. Barnes, Ky., 469 S.W.2d 61 (1971), a high school student drowned during a class outing. The school principal had given instructions and specified certain conditions under which the students were to go on the outing. A teacher and the school athletic director/basketball coach accompanied the students to Kentucky Dam State Park. While swimming one of the students drowned. The jury found no liability against these school personnel. The Kentucky Court of Appeals stated that it appeared "there was no evidence whatsoever that after the peril in which . . . (the student) placed himself was discovered or was discoverable . . . (the school personnel) had time to do anything to have averted the harm which befell him." Cox v. Barnes, supra, at 64. Although not mentioned in this case, note KRS 161.185 which demands that "Boards of education shall require a member of the school faculty or a member of the administrative staff to accompany students on all school sponsored or school indorsed trips."
The second Kentucky case is Wesley v. Page, Ky., 514 S.W.2d 697 (1974). A choral class teacher who was directing and producing the play "Little Abner" in which seventy to seventy-five students were participating, instructed certain students to use a form of live ammunition in a gun for sound effect purposes. During the public presentation of the play a student-participant was wounded by a projectile released from the gun. The jury returned a verdict in favor of the injured student against the teacher. The Court of Appeals stated the negligence of the teacher resulted from her failure to exercise any control or supervision over the use of the shotguns and live ammunition as a part of the play. The Court stated at 699:
"The use of a weapon, such as a shotgun, in a school play where the case is composed of teenagers who are both adventuresome and daring is in itself a highly questionable procedure. When we add to this use live ammunition, there is created an extremely dangerous situation which requires extraordinary care on the part of the teacher supervising the play. The very adventuresome nature of teenagers leads to experimentation and should place a teacher on notice that he can look forward not only to the expected but also to the unexpected."
The Court continued that under the circumstances the school teacher was required to foresee the events which resulted in the injury to the student.
We must go outside the state for cases which involved what is sometimes referred to as "abandonment of supervision. " These are the cases where the issue is whether a teacher's absence from the classroom constitutes neglect in supervision of the students under the teacher's authority. For generic reference, see Schools and School Districts 89.11; 147. See also "Tort Liability of Public Schools and Institutions of Higher Learning for Injuries Resulting From Lack or Insufficiency of Supervision, " 38 ALR 3d 830. A premier case of this nature is Ohman v. Board of Education of the City of New York, 90 N.E. 2d 474 (N.Y. 1949). In this case a 13-year-old boy in a drawing class sustained a severe permanent injury when struck in the eye by a lead pencil which had been thrown by a classmate. The accident occurred while the teacher in charge was temporarily absent from the classroom for the purpose of sorting and storing in a corridor closet nearby an issue of school supplies which was a routine task forming part of the teacher's usual duties. The Court of Appeals of New York found and affirmed that the teacher's absence was not the proximate producing cause of the injury. The court stated that the act of throwing the pencil under the circumstances could hardly have been anticipated in the reasonable exercise of the teacher's legal duty to the student. The court further stated that "this is one of those events which could occur equally as well in the presence of the teacher as during her absence." Ohman, supra, at 475. The court noted that which has been mentioned above; a teacher is not the insurer of the safety of students but rather is held to standard of a reasonable and prudent parent.
A very important tenet is to be recognized from the Ohman case. Since that case courts have held repeatedly that the fact each student is not personally supervised every moment of each school day does not constitute fault or negligence on the part of school employes. The issue of whether the occurrence of injury was foreseeable and proximately related to the absence of supervision is a question of fact for a jury. See Lewis v. St. Bernard Parish Sch. Bd., La.App., 350 So.2d 1256 (1977); Lauricella v. Bd. of Ed. of City of Buffalo, 381 N.Y.S. 2d 566 (1976); Ferreira v. Sanchez, 449 P.2d 784 (S. Ct. N.M. 1969). Nevertheless, we strongly believe that a teacher's absence from the classroom which he or she is responsible for supervising is inadvisable.
Against the above framework and background we will consider your specific questions although it should be obvious by now that we cannot really conclusively answer them. In your first question you ask whether there is proper supervision in the situation where the teacher has thoroughly demonstrated the use of all equipment and is adjacent to the classroom working with other students when a student is injured through what is speculated to be improper use of a machine. We do believe in this regard that the dangerous equipment or paraphernalia in use in a vocational classroom charges the teacher with foreseeability of harm. In determining whether the teacher had exercised reasonable care, such as a parent of ordinary prudence would under comparable circumstances, it would be necessary to ascertain, for example, the extent of instruction on safety precautions; whether the teacher had observed the student using the machine after the teacher's demonstration in order to correct improper practices; whether there had been any periodic observation thereafter, and the history of how well the student had followed instructions in using equipment in the past. The general industrial safety of the machines in use is a factor that may not be disregarded. See KRS 339.430, which reads as follows:
"Nothing in KRS 339.210 to 339.450 shall prevent the use of suitable machinery for instruction in schools where the mechanical arts are taught in connection with and as part of the usual school curriculum. The use of such machinery in any public or private school shall be subject to the approval of the board of education of the district where the school is situated, and shall be subject to the general industrial safety standards as to supplying safeguards for the protection of those using such machinery. "
Our response to your second and third questions must be, for all practical purposes, the same as given to your first question. We again caution, however, the quantum of diligence required when a dangerous instrumentality is involved is greater. Circumstances suggested in your first two questions occur frequently enough as a matter of course in teaching a vocational education class. In the total scheme of exercising reasonable care for the well-being of students, we cannot see any justification for a teacher leaving students in a classroom unattended while the teacher is in the break-room.