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Protecting schools and teachers from potential negligence cases.

The goal of safety legislation in the education system is to ensure that school officials protect and promote the health, safety and welfare of students, staff and the environment. The importance of these regulations cannot be overstated, as the use and storage of chemicals in school laboratories creates numerous hazards that can cause accidents resulting in injuries, property damage and in some extreme cases death.

According to the National Safety Council, accidents are the leading cause of death for people between the ages of I and 38. The most serious school-related injuries are burns from fire, chemicals, hot vapors and electricity, soft tissue injuries from explosions, broken glass, falling objects and electric shock and poisoning caused by radioactivity and inhaling, ingesting or touching chemicals.

School accidents that occur due to chemical handling are in part caused by poor safety instruction. It is a teacher's professional responsibility to show students how to safely work with specific chemicals. He or she must instruct students on the use of protective eye-wear and other safety equipment and on their responsibilities in an emergency situation.

Accidents also take place due to the teacher's failure to keep the classroom clean. Good housekeeping is essential and includes maintaining and storing chemicals, ventilating the work site and monitoring the movement of chemicals from one location to another. Another cause of accidents is poor labeling of toxic chemicals. Chemistry labs often have chemical containers with faded or illegible labels or with labels missing entirely. Furthermore, some labels are incomplete, only naming the substance and not providing any information about the toxicity or flammability of the chemical. Health and Safety Legislation In the mid-1960s the federal government set up the National Institute for Occupational Safety and Health to survey industry and determine how and where serious injuries occur in the workplace. Based on the results of those studies, the government passed the Occupational Safety and Health Act of 1970, which established safety and health standards for the workplace, guidelines for individual states to develop comparable safety programs and enforcement procedures. The act set up the Hazard Communication Standard, which is designed to assure exposed employees that all chemical hazards have been evaluated and that the information relating to those hazards is available to them. To comply with the standard, industry is required to make sure that all chemical containers are properly labeled, obtain Material Safety Data Sheets for all chemicals bought and used and maintain a written hazardous communication program. It also mandates that industry establish guidelines for training and information dissemination and that companies locate hazardous chemicals in a way that protects employees, students and the public.

Using these federal guidelines, New York state established its own occupational safety and health program. The Public Employees Safety and Health Act of 1980, enforced by the state's Department of Labor, applies to all public employees. An extension of the state's safety and health legislation is the Right-to-Know Law, which guarantees employees the right to information, training and education regarding toxic substances in the workplace. It also requires public schools to post signs, train employees and keep records.

Failure to comply with the laws may impose a liability on both the school district and the teacher. The board of education would generally absorb a teacher's liability provided that he or she acted within the scope of employment. However, if the teacher's act was found to be intentional and out of the scope of employment, he or she could be subject to personal liability. Under the Right-to-Know Law, school employees can request and receive information listed in the labor law concerning toxic substance hazards in the workplace, refuse to work with toxic substances if information was requested and not received within 72 hours and exercise any right under the law without fear of discrimination. In addition, they are not required to waive any rights under the law as a condition of employment, and they can file a complaint with the Department of Labor if discriminated against in violation of the law.

Responsibility and Liability It is important to understand safety legislation and how it affects a teacher's personal liability. When it comes to protecting students, liabilities start at the top and work their way down to the teacher. Because teachers work directly with students, they must ensure that the students learn and work in an environment free of health and physical hazards. They must also be aware of their personal liability and take whatever measures necessary to exercise an appropriate standard of care.

To meet their responsibilities, teachers must fulfill three specific duties. First, instruction, whether classroom or laboratory, must be prepared well in advance of the lesson. If experiments will be demonstrated with student participation, they must be tested beforehand to assure the proper outcome. As a part of all lessons involving chemicals, safety should be an integral part of the curriculum and the students' knowledge of it should be tested. In addition, the chemistry teacher should document all lessons involving experiments and include in these reports chemical reactions, equipment condition, safety procedures and student activities. Teacher supervision is also essential. The teacher must always be in full control inside the classroom. If an accident occurs, the teacher should calm the students and secure police, fire or medical assistance. Finally, teachers are responsible for administrative, housekeeping and inspection duties. When the teacher performs an experiment, it is his or her responsibility to make sure the equipment is safe and functions properly. If it needs repair, the teacher should immediately notify the proper people and store the unsafe equipment out of students' reach. Makeshift equipment should not be used as a replacement. Rather, the experiment should be put on hold until the equipment is fixed. As required under the Right-to-Know Law, teachers must make sure labels stay intact and remain legible and must dispose of the chemicals properly.

Legal Issues Three aspects of law come into play concerning right-to-know legislation. Tort law involves a civil wrong in which one suffers a loss resulting form the improper conduct of another. An example is a student who is injured because a teacher failed to properly supervise. The teacher may be liable for financial compensation to the injured party.

Criminal law involves one party intentionally and willfully harming another. An example is a teacher who attempts an experiment under the influence of drugs or alcohol and causes serious injury to the students. If found guilty of a criminal act, the teacher may be fined or receive a prison sentence or both.

Business law involves the law of contracts, whereby the parties agree to perform specific duties or provide specific material. Failure to comply may cause the contract to be canceled or carried out as originally agreed upon. If, for instance, lab equipment is ordered and the vendor fails to send it, the purchasing party may petition the courts to make the vendor comply or request that they not be billed for the equipment. Elements of Teacher Negligence Negligence, as it applies to injury under tort law, is the conduct that falls below the standard of care established by law. If no standard exists, it is measured against what a reasonable and prudent person would have done under the same circumstances. The four elements of teacher negligence are duty of care, standard of care, proximate cause and actual loss or injury. Duty of care is an obligation owed students that assures them they will not be exposed to unreasonable harm. To avoid a negligence claim under duty of care, the choice of lab experiments and the demonstration of these experiments must agree with the state and district teaching syllabus.

Standard of care is when the teacher fails to do what a reasonable and prudent person would have expected. A typical example of this is the concept of foreseeability in which the teacher does not test the experiment prior to performing it in the classroom. Proximate cause is when the teacher's negligence substantially contributes to the injury. This could happen when a disruptive student, who should have been removed from the classroom by the teacher, injures another student. Actual loss or injury occurs when the teacher's negligence results in direct injury to the student. This could happen if an experiment demonstrated by a teacher explodes and directly injures a student.

Teachers can claim such defenses as contributory negligence, comparative negligence or assumption of risk. Contributory negligence occurs when the student fails to exercise the required degree of care and is therefore a direct cause of the accident. Because the teacher is responsible for instruction and supervision, and the student cannot be expected to use the same degree of care as an adult, this may be difficult to prove. Comparative negligence involves degrees of fault. For example, the court may find that the teacher was 75 percent negligent and the injured student was 25 percent negligent. Thus, if the jury awarded a $100,000 judgment to the student, the teacher would only be responsible for 75,000. A teacher could claim assumption of risk if the student knew of the potential accident-causing situation and voluntarily accepted the risk. An example of this is a student who commits a dangerous act or handles a hazardous chemical without the teacher's knowledge. With this defense, it is assumed that the teacher has instructed, supervised and properly maintained and secured the equipment.

Section 3023 of the New York state education law is designed to protect teachers from the financial losses resulting from a negligence suit. It states: "A board of education will save harmless and protect all teachers from financial loss arising out of any suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury of accidental damage to property of any person within or outside the school building, provided such teacher, at the time of the accident or injury, was acting in the discharge of their duties within the scope of their employment." Section 3023, however, will not hold teachers harmless if they intentionally hurt students. The act would be deemed criminal, as it is acting out of the scope of their employment. In this case a teacher may be subject to loss of home and future earnings, a large punitive settlement to the injured party, loss of future employment opportunities and criminal charges and a possible jail sentence. While Section 3023 protects a teacher from having to repay a school district for financial losses stemming from negligence, the district is free to question a teacher's competence and institute employment termination procedures.

By law, students are entitled to safe, healthy school environments. But teachers have rights too, such as the right to protect themselves from negligence suits. To minimize their liabilities, teachers must take the initiative to understand safety legislation and how it affects their personal liability. Robert M. Bieber, ARM, is vice president of Risk Innovations Service and Consulting Inc. (RISC), a risk management service company in New York. This article is based on two presentations made to science teachers and custodial staff at Newburgh Free Academy in New York.
COPYRIGHT 1991 Risk Management Society Publishing, Inc.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1991 Gale, Cengage Learning. All rights reserved.

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Author:Bieber, Robert M.
Publication:Risk Management
Date:Mar 1, 1991
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