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Security at Schools, Colleges and Day Care is Focus of Leighton speech in Los Angeles starstarstarstarstar

John Leighton spoke at the annual convention of the American Association for Justice in Los Angeles, California in July.  Below is the paper which accompanied his speech and which was provided to attendees of the convention.

Safe or Scary? Negligent Security in Schools, Colleges, and Day Care

John Elliott Leighton, Esq.

When parents entrust their children to others – whether as babies, toddlers, or teens – they expect that they will be protected from dangers. All too often schools and institutions caring for children assume that they are immune from the threat of violent or sexual predators. Even when they are legally “adults” as college students, these are among the most vulnerable in society.

The number of children being cared for in a childcare or early education programs has soared over past decades.[1] Driven by increases in the number of dual parents in the work force, changes in family structure, and parents’ desire to provide children with educational experiences to prepare them for school, children are routinely placed in child care or early education programs.[2]

Because more and more parents both have full times jobs and work outside the household, there are currently over 15 million kids under the age of six that require care.[3] Of that group, nearly 11 million children are in some type of child-care setting for an average of 35 hours per week.[4] This is empirical proof that child care is an essential part of today’s economy. Parents cannot work without child care.

While parents work, children must be in a safe setting that promotes their healthy development.[5] Unfortunately that does not always occur. Recent events across the United States illustrate the fact that day care and   early education programs can be an extremely volatile and dangerous place for kids. Here are but a few examples:

Assault: A Missouri day care worker was charged with assaulting a 2-year-old boy.[6]

Neglect: A Texas day care employee was charged with leaving a child in the trash.[7]

Abuse: A Florida day care worker was charged with child abuse after video captures her kicking a 16 month-old child.[8]

These are prime examples of how unsafe day care and child education programs can be. It is imperative for the practitioner representing the child and his or her family to know the groundwork of how children can be protected in such an environment. Luckily many states have provided the framework for daycare facilities to abide by.

California’s Solution

California has adopted article I, section 28, subdivision (c) of the California State Constitution (“Inalienable Right(s) to attend a Safe School Environment”) to ensure that children at school, including daycare, are provided with an educational setting that is “safe, secure and peaceful.” The California Code of Ethics of the Teaching Profession provides that a teacher must “protect the health and safety of students.”[9] California courts have made clear that there is both a “moral duty and a legal obligation” to ensure that children are entitled to a safe and secure environment at daycare.[10] Such definitive rights, highlighted by the previous California examples, can formulate the baseline as to what kind of institutions daycare and early childhood centers must conform to.

Often when a child is harmed at school a facility asserts that their employees are independent contractors and thus the defendant is not liable for the employee’s negligence. Courts have generally rejected this defense. “Where there is a non-delegable duty, the employer hiring an independent contractor to perform services encompassed within that duty is vicariously liable when those services are performed negligently.”[11] The Florida Supreme Court declared that “Neither the principal nor the teacher could assert immunity from liability for injuries sustained by student…as they both owed a ‘special duty’ to the student…”[12] In Florida, the duty owed to a child is beyond reasonable care and in effect, the daycare assumes a duty in loco parentis.[13] California adheres to this legal maxim and states that there is a “special relationship” between school officials and a child’s parents and the daycare “stood in loco parentis and owed a duty of care not only to [the child], but to the [child’s] mother as well.”[14] New York reinforces this principal and case law asserts that “Schools have a duty of care towards students because they act in loco parentis; that is, they take the place of parents while students are in their custody, and therefore must act with the same care as a parent of ordinary prudence would observe in comparable circumstances.”[15]

The previously cited case law provides prime examples of how practitioners can assert that not only are daycare and early childhood education centers on the hook if something happens to a child, but that the duties they owe a child are “special”, must be taken seriously and abided by.

Some states have even codified laws and statutes that specifically delineate the standards of how a daycare should operate. For example, Montana has the “Montana Child Care Act.”[16] The purpose of the Montana Child Care Act “is to assure that children requiring day care be provided such food, shelter, security and safety, guidance and direction, nurture and comfort, and learning experiences commensurate to their ages and capabilities so as to safeguard the growth and development of such children, thereby facilitating their proper physical and emotional maturation.”[17] The act further articulates the standards to which Montana daycares must adhere.

Another example of the length that states go to protect children at daycare are in states’ implemented policies of mandating that abuse of children is reported to the appropriate state entity. For instance, Connecticut requires that occurrences of injury and/or neglect by daycare employees be immediately documented and reported to the Connecticut State Department of Children and Families, in consultation with the Department of Education.[18] This is important, because daycares are afforded the opportunity to look for harm, document it and report it. If that does not occur and a child is harmed in a jurisdiction with mandatory reporting regulations, this information can be utilized by the child’s attorney to prove that the daycare did not adhere to the proper guidelines and the child’s injury was not brought to the attention of the appropriate state investigatory entity.

Tools for Parents and Litigators

States have increasingly made it more user friendly and accessible for individuals to determine whether or not their child’s prospective daycare is accredited[19], licensed appropriately[20], or has passed the requisite state sanctioned inspections.[21] These public databases not only ensure that parents can do their own due diligence on a facility, but provides practitioners with important tools at showcasing and highlighting how poor a daycare is and whether they were not up to the appropriate standards pursuant to each respective state law.[22]

There are also numerous national organizations that create their own standards with the goal of promoting appropriate responsibilities that an early childhood program must abide by.[23] An attorney can utilize these organizations’ standards to highlight how a daycare violated these principles. And if an attorney is hard-pressed in locating these standards, they can utilize an “Education Expert”, who can provide an expert opinion regarding whether or not the daycare at issue adhered to the appropriate professional standards.

So if a practitioner is faced with litigating a case against a daycare on behalf of a child’s family, public records, organizational standards, and expert testimony can provide vital information at proving the daycare’s previous mismanagement, lack of certification and evidence of fault.[24]

School Violence[25]

School shootings appear to continue with little evidence of reduction. At first blush they often appear to be carried out by extremists – either angry, disaffected youths, or the mentally ill with an agenda.  Occasionally they are the product of extreme bullying.  And rarely are they the result of terrorism, though all school shootings instill a sense of terror.

Regardless of the cause or mechanism, these shootings leave families devastated, victims crippled, and communities outraged. There are the perfunctory calls for new gun control and counter arguments in favor of more guns in the schools to stop the violent criminals who initiate such attacks.

Despite an initial urge to categorize school shootings as “aberrant” or “isolated” or “unforeseeable,” in reality these events are foreseeable and often preventable. Especially after the long history of school shootings in America,[26] can any school, college or university really claim that such shootings are unforeseeable? While the exact time, place and manner may not be predictable, the fact that such an event might reasonably occur makes them foreseeable.

Between 1980 and 2012, there were 137 school shootings in the United States with a death toll in excess of 297. In the short time since the massacre at Sandy Hook in Connecticut in December 2012,[27] there have been more than 74 shootings.[28]

If a private business was in an industry where there were regular attacks only at businesses that sold their products and the attacks were heinous, often involving gruesome and violent deaths of innocent children, would that not make such incidents foreseeable to that industry on the whole?  Unless a state requires that a prior similar attack have happened on the premises in question to create liability, would the school or institution not have a duty of care to take reasonable measures to deter, prevent or minimize school shootings?

For these reasons the time has come to consider this type of incident as a unique genre of premises security litigation. Most of the litigation arising out of school shootings has been directed at the school or institution.  The initial challenge for the victim’s counsel is to link any negligence on the part of the school or its agents to the acts which occurred.

What constitutes reasonable action on the part of educational institutions may vary based on school, location, district, state, history in the district, school, and neighborhood, prior threats, specific student conduct, and many other factors. The fact that schools are now known to be targets of violence – and there is a long and storied history of school shootings in the United States – makes such acts generally foreseeable. The real questions facing schools is to what extent are they liable and what are reasonable measures that should be used to protect students, faculty, staff and visitors.

School shootings can be roughly categorized in one of three categories:

  1. student-initiated,
  2. faculty/staff-initiated, or
  3. stranger/intruder-initiated.

Other than stranger/intruder-initiated acts, the remaining involve individuals (one or more) for whom traditional perimeter security would generally be ineffective. Whereas limited access might prevent someone who does not have business on the premises from entering, someone who is legitimately on campus or within a building would not likely be deterred unless there was a security presence in place that would create a psychological deterrent effect[29] or some other means to prevent the school violence. Depending on the nature of the violence (e.g., premeditated shootings, escalating conflict, rage shootings, etc.), security may or may not have a deterrent effect.  Other security may include limited access to certain areas, CCTV, the presence of others, etc.

Perhaps the most important use of security in schools relates to situations when there is an identifiable threat. These threats may be in the form of generalized threats by someone who is angry, unstable or presents some recognizable potential for violence. There may also be specific identifiable threats directed toward an individual. They also may present as mental illness or other condition which creates some awareness that a risk exists for violence. In school situations there exists a vulnerable victim population and often an immaturity in impulse control on the part of students.

Following the December 2012 massacre at the Sandy Hook Elementary School in Newtown, Connecticut, the State of Connecticut Office of the Child Advocate issued a 114 page report, “Shooting at Sandy Hook Elementary School.”[30] The report identified years of warnings and dozens of red flags about the potential for violence on the part of shooter Adam Lanza, including his access to firearms and a preoccupation with death and violence.

This raises the question in school shooting cases about whether those involved in the care and treatment, as well as education, of a disturbed youngster might have liability imposed upon them for failing to recognize and identify those with potentially violent tendencies. Below is an examination of potential defendants in school shooting cases and a discussion of some of the litigation which has ensued following these tragedies.

POTENTIAL DEFENDANTS

 

  • Schools and Educational Institutions

 

As the obvious initial target in such litigation, the threshold question is whether the action can be brought in the first place. Many states confer governmental or sovereign immunity on school districts.  If that is the case, it must be determined whether there are any exceptions or waivers to immunity. Even when state law provides full or limited immunity from suit, such institutions are not immune from federal actions if brought under a federal statute such as 42 U.S.C §1983 or Title IX, 20 U.S.C. §1681.  In such cases if a plaintiff prevails on federal claims, there would be no state immunity.

In cases arising out of the Columbine massacre in 1999, a federal court found that school officials were immune under state governmental immunity law and that there was no constitutional violation by the school district or officials that was the moving force behind the shootings, thus precluding recovery based on §1983.[31] Likewise in litigation against school officials following the Heath High School shooting in West Paducah, Kentucky in 1997, the trial court’s dismissal of parents’ claims was affirmed based on qualified immunity.[32] Similarly, Georgia affirmed dismissal under like circumstances based on sovereign immunity and discretionary act immunity.[33]

The parents of a child murdered by two classmates brought an action against the school district for failing to protect their child. In affirming a summary judgment in favor of the district, the Idaho Supreme Court held that the risk was not foreseeable and therefore the school owed no duty, despite the facts that the perpetrators had given warnings of a “Columbine-like” shooting.[34]

In March 2012 a jury awarded $4 million each to two families who brought suit against Virginia Tech following the 2007 massacre that was the single deadliest shooting by a single person in U.S. history. The claim against the school was based on its failure to promptly notify students after learning that two students had been found murdered in a dormitory room before the shooter went on to kill 30 others elsewhere on campus.  The $4 million verdict was later reduced by the court to $100,000, which was the cap on damages under Virginia law.

Following judgment, Virginia Tech appealed the verdict to the Virginia Supreme Court, which in 2013 unanimously reversed the verdict. Despite the fact that student-shooter Seung Hui Cho waited 2 ½ hours before chaining the doors in the hall where he shot 47 people, the Court held that “there was no duty for the Commonwealth to warn students about the potential for criminal acts” by the perpetrator after he shot the two students in the dormitory.[35]

Despite this pronouncement by Virginia’s high court, the Virginia Tech shooting has caused schools and universities everywhere to retool their emergency planning. It is now an industry standard for students, faculty and staff to be alerted rapidly through text messages, e-mail and other communications when threats emerge. There are even smartphone apps that are dedicated to such alerts.

Prior to the Virginia Supreme Court’s ruling, U.S. Education Secretary Arne Duncan concluded in August 2012 that Virginia Tech should be fined[36] for violating the Clery Act (10 U.S.C. ‘1092(f)). Under the Clery Act universities are required to issue timely warnings of threats to students and staff.  In fining Virginia Tech, Duncan wrote, “It is alarming that [Virginia Tech] argues that it had no duty to warn the campus community after the Police Department discovered the bodies of two students shot in a dormitory, and did not know the identity or location of the shooter. Indeed, if there were ever a time when a warning was required under the Clery Act, this would be it.”[37]

Under the Clery Act, colleges and universities that receive federal student aid funds must meet disclosure and criminal incident notice regulations intended to improve safety for members of the educational community on campus. Schools are subject to Education Department disciplinary actions which can include fines or, in severe cases, loss of federal student aid eligibility.

One possible basis for liability against a college is misrepresentation of crimes based upon the duty imposed by the Clery Act. If schools manipulate their crime statistics it may serve as proof that there was a fraudulent representation of safety on the part of the institution. Additionally, colleges are increasingly using concepts such as threat assessments to determine hazards and identify when a risk exists.[38]

Colorado law changed in 2015 with the passage of the Claire David School Safety Act.[39] Named for the victim of a 2013 Colorado school shooting at Arapahoe High School, the law allows suits against the schools if they are negligent, but limits recovery to $350,000 per victim and $900,000 per incident. The law provides that schools cannot be found negligent for failing to expel or suspend a student alone.

Perpetrators

This is most obvious and easiest target defendant but likely the least collectible. Notwithstanding the frequency of suicide by school shooters, or death by law enforcement, the criminals usually have few if any assets.  Sometimes they will be named defendants for strategic reasons or, in some cases, if they are not in a state where “Son of Sam” laws preclude profiting through media, there is potential recovery.[40]

Parents/Guardians of Minor Perpetrators

Besides the schools themselves, the perpetrators (or their Estates) may be defendants, as might their parents, guardians or other institutions with knowledge of the perpetrator’s violent propensities.

Negligent supervision was the theory under which three families of children killed at Chardon High School near Cleveland in 2012 brought suit. T.J. lane killed 3 students at the school and suit was filed against Lane’s parents and grandparents, with whom he lived, based on their failure to supervise the shooter.  Settlements totaling almost $2.7 million ($890,000 each) were reached with homeowners insurance paying a substantial amount of these claims.[41]

Some of the Columbine cases were settled for $2,530,000 with the families of the shooters as well as friends who are serving prison time for securing weapons for them.[42]

Numerous lawsuits have been brought against the estate of Sandy Hook shooter Adam Lanza’s mother Nancy. The claim is that Lanza’s mother was negligent in allowing her son access to the Bushmaster AR-15 rifle he used to massacre the children at the Newtown elementary school on December 14, 2012.  These allegations include claims that Mrs. Lanza allowed Adam access to weapons “despite the fact that she knew, or should have known, that his mental and emotional condition made him a danger to others.”[43]

American society is forever changing. Societal norms and familial structures currently force huge amounts of children to spend their day not at home but at daycare or aftercare. Likewise children spend a majority of their years at schools, and later when at college, generally live and learn on the same campus. No child’s well-being should ever be stripped or jeopardized, especially by the people who are entrusted to supervise them. When a child is harmed at school it not only affects the child but also damages public confidence in our educational institutions.

 

[1] (Sandra L. Hofferth, Child Care In The United States Today, The Future of Children, Summer/Fall 1996)

[2] Id.

[3] (US Census Bureau. (2012), American Community Survey, 2009-2011 three-year estimates. http://www.census.gov).

[4] (Child Care Aware of America, We Can Do Better, 2013 Update, Ranking of State Child Care Center Regulations and Oversight, April 2013)

[5] Id.

[6] http://fox2now.com/2015/04/04/day-care-worker-charged-with-assaulting-2-year-old-boy/; April 4, 2015.

[7] http://www.nbcdfw.com/news/local/Garland-Daycare-Employs-Woman-Charged-with-Leaving-Child-in-Trash-298175551.html. March 31, 2015.

[8] http://www.wsvn.com/story/27906818/daycare-worker-charged-after-video-captures-kicking. January 21, 2015.

[9] Cal. Admin. Code, tit. 5, § 80130.

[10] In re William G., 40 Cal. 3d 550, 574, 709 P.2d 1287 (1985)

[11] M.S. v. Nova Southeastern Univ. Inc., 881 So. 2d 614, 620 (Fla. 4th DCA 2004).

[12] Rupp v. Bryant, 417 So.2d 658 (Fla. 1983); see also Gross v. Family Services Agency, 716 So.2d 337 (Fla. 4th DCA 1998).

[13] “In loco parentis” is defined as “Of, relating to, or acting as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a parent.” Bryan A. Garner, Black’s Law Dictionary 803 (8th ed. 2004).

[14] Phyllis v. Superior Court, 228 Cal. Rptr. 776, 778 (Ct. App. 1986).

[15] Stephenson v. City of New York, 85 A.D.3d 523, 526, 925 N.Y.S.2d 71, 74 (2011) aff’d, 19 N.Y.3d 1031, 978 N.E.2d 1251 (2012).

[16] Mont. Code Ann. § 52-2-701.

[17] Mont. Code Ann. § 52-2-702.

[18] Conn. Gen. Stat. Sec. 17a-101(a) & (b)

[19] Florida: Childcare Provider search: http://dcfsanswrite.state.fl.us/Childcare/provider/.

[20] National Child Care Licensing Inspection Database: http://childcareaware.org/parents-and-guardians/parent-information/parental-access-online-child-care-licensing-inspections-and

[21] Maryland: http://www.checkccmd.org/.

[22] Ohio: http://naccrrapps.naccrra.org/map/publications/states/Ohio.pdf.

[23] One examples is the National Association for the Education of Young Children, Prevention of Child Abuse in Early Childhood Programs and the Responsibilities of Early Childhood Professionals to prevent Child Abuse (1996).

[24] National Child Care Licensing Inspection Database: http://childcareaware.org/parents-and-guardians/parent-information/parental-access-online-child-care-licensing-inspections-and.

[25] Portions of the “School Violence” section has been adapted from Leighton, Litigating Premises Security Cases, Vol. 2, Ch. 19, “School Shootings” (West 2015).

[26] See, e.g., Appendix A: Select List of Notable School Shootings in the United States.

[27] See, e.g., http://www.washingtonpost.com/politics/sandy-hook-elementary-school-shooting-leaves-students-staff-dead/2012/12/14/24334570-461e-11e2-8e70-e1993528222d_story.html.

[28] Pierre v. City of Providence School Board, 2014 WL 2807237 (R.I. Super. June 16, 2014).

[29] Often useless if the perpetrator is planning to commit suicide or is otherwise mentally unbalanced.

[30] “Shooting at Sandy Hook Elementary School,” Report of the Office of the Child Advocate, November  21, 2014, http://www.ct.gov/oca/lib/oca/sandyhook11212014.pdf.

[31] Ruegsegger v. Jefferson County School Board, 187 F.Supp.2d 1284 (D.Colo. 2001).

[32] James v. Wilson, 95 S.W. 3d 875 (KY App. 2002).

[33] Kelly v. Lewis, 221 Ga.App. 506 (GA Ct. App. 1996)(incident occurred on the way to school and not on premises).

[34] Stoddart v. Pocatello School District #25, 149 Idaho 679 (Idaho 2010)(killing occurred off school premises).

[35] Commonwealth of Virginia v. Peterson, 749 S.E.2d 307 (Va. 2013).

[36] Virginia Tech fought the penalty for three years and in 2014 paid $32,500 in fines. Roanoke Times, April 16, 2014.

[37]http://www.campussafetymagazine.com/files/resources/Virginiatech.pdf

[38] See, e.g., “Taking a Bullet: Are Colleges Exposing Themselves to Tort Liability By Attempting to Save Their Students?” 29 Ga.St.U. L.Rev. 539 (Winter 2013).

[39] Co.Rev.Stat. 24-10-106.3, 106.5 and 108. Effective 2017.

[40] Such laws were first enacted following the “Son of Sam” murders committed by serial killer David Berkowitz after reports that the media was offering Berkowitz substantial sums for his story. The law authorizes states to seize assets earned from any media derived from the notoriety of the crime and compensate victims with it. N.Y. Executive Law ‘632-a (McKinney 2005).

[41] http://www.wkyc.com/story/news/local/geauga-county/2014/05/20/settlement-reached-in-chardon-wrongful-death-lawsuit/9343985/

[42] http://www.nytimes.com/2001/04/20/us/2.53-million-deal-ends-some-columbine-lawsuits.html.

[43] http://www.cnn.com/2015/03/14/us/connecticut-sandy-hook-lawsuits/

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