We presume schools are a safe haven for our children, where they’re free from undue harm and injury. Unfortunately, that’s not always the case. Fights in school are often a rite of passage from childhood to young adulthood. While most school fights are no more than posturing along with some pushing and shoving, there are times when disputes get out of hand, escalating to violence.
If your child is hurt in a fight, you may incur medical or dental bills. In some cases, psychological counseling is necessary. The question often asked is who’s responsible. Would your child be hurt if there was proper school supervision? Did the school fail in its responsibility to provide a safe environment for your child? What about the student who initiated the fight? Are his or her parents liable?
In this section, we address these issues and more. We cover:
- School liability and its legal duty of care (obligation)
- The duty of teachers to intervene in school fights
- The role of law enforcement
- School protocol and policies
- Parental liability for the violent acts of their children
- Succeeding in your child’s personal injury claim
Through the legal doctrine of in loco parentis (a Latin term meaning “in place of the parent”), the courts have said that schools and its teachers assume the role of parents in the areas of supervision and discipline. In assuming this role, each school has a legal “duty of care” to do everything within reason to protect students from undue harm. This includes exercising good judgment and using reasonable force when necessary to quell student-on-student violence.
A school’s legal duty of care begins the minute a student steps onto a school bus and it continues throughout the school day. This includes extracurricular activities occurring on school property, and when students are off school property for school-sponsored activities like football games, inter-school debates, etc.
The school’s duty of care ends when the student steps off the school bus at the end of the day, leaves with a parent, or, in the case of high-school students, leaves by their own means.
When a school breaches (violates) its duty of care, the breach constitutes school negligence. When a school’s negligence results in injuries to a student, the student can receive compensation for his or her damages.
Damages can include the student’s medical, dental, and therapy bills, his parent’s or legal guardian’s out-of-pocket expenses for medications, crutches, slings, etc., the student’s lost wages (if he or she has a part-time job) and for the student’s pain and suffering and emotional distress. Damages generally do not include a parent’s pain and suffering.
“Boys will be boys” and “girls will be girls” are common refrains teachers and school administrators use in the face of criticism over incidents of student-on-student assaultive behavior. Yet fights in school can leave a child bloodied and battered with black eyes, lost teeth, cuts, bruises, and emotional damage.
A school’s duty of care requires teachers or other qualified school personnel to intervene just before or during a school fight. The duty to intervene begins when a school knows, or should know, a student is prone to violence. When a school is aware of a student’s tendency toward violence, the school has a legal duty to take action before something happens. This frequently applies to school bullies, both male and female.
The school’s duty includes admonishments to the violent student and his parents, disciplinary action, or other corrective measures intended to stem future acts of violence, including expulsion. When a school is aware of a student’s violent nature and takes ineffective measures to prevent the student from perpetrating future violence, the school may be liable when the violent student harms another student.
The duty to intervene, like the school’s general duty of care, begins when the student steps onto the school bus and ends when the student effectively leaves the school’s property. This includes intra-school activities and post-school, extracurricular activities.
Even in the best of circumstances, school fights inevitably erupt. A punch can be thrown in a split second. When a teacher sees a fight, he or she has a duty to physically break it up. The teacher has the power to use reasonable force to end the fight, and quickly, to avoid further injuries.
School districts traditionally indemnify (insure) teachers for injuries they may cause to students while breaking up a fight. This means if, while stepping in to end a fight, a teacher injures a student, the school will defend the teacher, absorbing all legal costs for lawsuits parents file and for any insurance settlements or court-awarded judgments against the teacher. As long as the teacher is acting within the scope of his employment, the school protects the teacher.
Assault, even by a student on another student, is a crime. Depending upon the severity of a student’s injuries, schools have the discretion whether to call the police to make an arrest or not. This discretionary power is a two-edged sword.
On the one hand, if the school doesn’t call the police to arrest the student, they may breach their duty of care to protect the other students. On the other hand, having a student arrested for a minor assault can seriously affect the student’s future. An arrest record, even for a minor assault, can have far-reaching consequences.
In many cases, the school defers to the injured student’s parents. The school will ask the student, with the advice and counsel of the student’s parents, whether he wants to file a police report and have the student who initiated the fight arrested.
Another problem often faced by schools is who threw the first punch. Most school fights begin with a lot of pushing and shoving. Is the student who first shoved the other student guilty of assault? What if the other student responds with a punch? Is the “puncher” or “punchee” responsible for the assault? And what if students were acting out by wrestling with each other? Is that by definition a school fight?
These are difficult questions to answer, and the authorities have to deal with them on a case-by-case basis.
School Protocol and Policies
To assist teachers and school administrators in properly exercising their duty of care toward students, each state has laws and regulations setting out the boundaries of school responsibility. These laws and regulations are under each state’s Education Code. They set out the policies and protocol school administrators and teachers must follow when dealing with student behavior, including student violence.
Parents’ Vicarious Liability
The courts have traditionally held parents responsible for their children’s actions. This liability means parents must compensate the injured student’s parents for damages the student suffered. Parental liability can run at the same time as school liability. This means an injured student can pursue a claim of negligence against the school and the other child’s parents, individually and collectively.
Before anyone can assess parental liability, the injured student has to prove the assault was unprovoked and not the result of self-defense. The law does not recognize verbal abuse as grounds for physical assault. The old adage “Sticks and stones may break my bones, but names will never hurt me” is a legal truism.
The only time when throwing the first blow is legally acceptable is when the perpetrator’s words threatened the other student with imminent bodily injury, or there was an imminent threat of bodily harm to a third person nearby.
If your child was injured and you’re considering a personal injury claim against the school or the parents of the student who injured your child, you have to gather evidence to support your claim.
In the case of school liability, you must have sufficient evidence the school failed in its duty of care, either by failing to act preemptively by expelling or admonishing a violent student, or by failing to physically intervene in the fight to minimize injuries to your child.
School policy and protocol
Start by reading the part of your state’s education code dealing with school disciplinary powers over students with violent behavior. Since the courts use the education code as a basis to determine whether the school acted in accordance with state law, knowing what the law says is essential.
Student records are confidential, so you can’t review a student’s record to see whether the school previously admonished or disciplined him about violent behavior. If it becomes necessary to retain an attorney, she can subpoena the student’s records as well as all documents related to the history of fights in school, school violence, and the school’s response to them.
Even without seeing a student’s records, your child and his friends can tell you whether the violent student was previously in fights at school and if so, what type of disciplinary action, if any, the school took against him. The school’s failure to effectively deal with a student’s violent behavior enhances their liability, making your case against the school that much stronger.
Photographs and video
Photographs and video are very helpful to a claim. Photograph your child’s injuries as soon after the fight as possible. Because it can take 24 to 48 hours for swelling and bruising to appear, take photographs then as well. These days every student has a cell phone. It’s unnerving to look at YouTube and see hundreds of school fights student spectators recorded for posterity.
Ask your child’s friends whether they have a video showing the fight. Gather as many as you can while looking for the one that best illustrates how your son was the victim and not the aggressor. Previous videos of the aggressor in fights will also be helpful.
Eliminating any evidence of your child’s contribution to starting the fight is essential. Any verbal provocation, although not legally sufficient for the aggressive student to initiate the fight, is enough to lessen the student’s liability and decrease your child’s personal injury settlement amount.
There are always multiple witnesses to fights in school. Their written statements are invaluable. Speak with parents of students who may have witnessed the fight. Ask them to have their children write down in their own words what they saw, especially who started the fight. Don’t worry about notaries or sworn affidavits. That’s not necessary.
You can get as angry with the school or the violent student as you want, but if your child doesn’t have legitimate damages, including medical or dental bills, you don’t have a valid personal injury claim.
You need proof of all costs related to your child’s injuries, including medical bills, receipts for out-of-pocket expenses, and verification of your child’s lost wages (if any). Get copies of your child’s medical, dental, and therapy records. They are all crucial in supporting the amount of compensation that fairly represents your child’s damages.
Insurance Companies and Tort Claims
Many homeowners’ insurance policies cover injuries residents of the home cause, even when the injuries occur off the property. Unfortunately, these same homeowners’ policies exclude acts of violence.
If your child was hurt in a public school, you have to go through a form of government tort claim. To do this, ask the school office for a tort claim form for personal injury. File the form promptly. The filing deadlines are often quite short, sometimes as little as 30 days.
If the injury occurred in a private school, ask the head office which insurance company represents the school. Get the name and address of the insurance company so you can file a claim. Make sure you send copies of all records and receipts to the claims adjuster.
Often enough, the adjuster will want to take your child’s recorded statement. You don’t have to agree to it, no matter how important the adjuster suggests it is. Let the adjuster work her own case. It’s not worth taking a chance your child may say something harmful to his or her claim, no matter how innocently.
When to Hire an Attorney
If your child’s injuries are soft tissue, including minor bumps and bruises, cuts and minor swelling, you can probably handle the claim yourself. However, if the injuries are the more serious “hard injuries,” including fractures, deep cuts and gashes, scarring, burns or the like, you need a licensed personal injury attorney. There’s just too much at stake to “go it alone.” Look for an attorney with experience in school law.
School law presents unique legal challenges. Attorneys can subpoena school records you might otherwise not have access to, and take depositions (recorded, sworn statements) of teachers, administrators, witnesses, and the student who started the fight. Most personal injury attorneys don’t charge for initial office consultations. Visit several before choosing.
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