Yes, the little girl was hurt, though the injury was minor, and yes, a staff member may have been a bit at fault for lax supervision, but you handled everything right. You notified the parents of the incident, you administered the minimal medical assistance needed, you provided the child a calming and caring environment until her mother arrived, you assured the mother that all was okay before she whisked her child away, and in the aftermath, you generated a professional incident report.
A week of edgy silence passed, the little girl did not return to school, and then came a process server, delivering a complaint full of exaggerated facts and seeking enormous monetary damages. The parents of the little girl have become plaintiffs and you have become a defendant.
What’s happens? Where do we stand?
When parents enroll their child in your school a legal relationship is established between the school and the parents, and to understand that relationship we must first address some fundamental legal concepts and terminology.
The legal relationship formed at the inception is contractual, created by the admission agreement. The typical private school admission contract or tuition agreement requires the school to care for and/ or educate the child in exchange for parent payment of tuition. The contract creates a legal obligation on both parties to perform and is enforceable in the courts if there is a failure to perform by either side.
An example, related to the above, is where a child is injured while in the care of the school. The law and the admission agreement either expressly or impliedly require that in the parents’ absence the school will care for the child. If the school fails to do so properly, the parents could bring a lawsuit against the school as well as against teachers or staff members deemed to have failed in their duties.
With hearts wide open, childcare providers welcome new and returning families into their programs every school year. Young children entering school for the first time are filled with separation anxiety. Parents often rely upon the teachers for the strength and comfort needed to handle this anxiety, and teachers seek to impress new families with their expertise, experience, and classroom organization.
Perhaps for the first time, parents are leaving their babies with a stranger – a stranger who their child will emulate, learn from and form a bond during the most impressionable stage of their life. The emotional and social bond between teacher and parent is but one aspect of the relationship. Simultaneously, the teacher and family are forming a legal and professional relationship that encompasses legal duties, expectations, and obligations.
Therefore, the emotional, legal and professional relationship is formed concurrently. No matter how stellar the program or staff, or how easy going the parent, or how angelic the child, this crucial fact should never be ignored. The legal and professional obligations are inextricably linked to the teacher-family relationship.
So, what happens when an incident occurs and the relationship sours?
The first step in answering this dreaded question is having a basic understanding of fundamental legal terminology.
Parties to lawsuit
Who can start a lawsuit?
Let’s be crystal clear about one thing. Anyone can start a lawsuit; including, businesses, organizations, governments and individuals over the age of 18. People under the age of 18 are considered minors and do not have legal standing to sue on their own, but if a lawsuit is necessary on behalf of a minor an adult (usually a parent) will be appointed by the court to serve as a legal guardian (guardian ad litem) during the course of the litigation.
What are the parties in a lawsuit called?
Plaintiff. The person starting the lawsuit is called a plaintiff. A plaintiff sues another person or business to recover damages.
Defendant. The person being sued is called the defendant. You have surely heard the advice to a defendant that “you have the right to an attorney and if you cannot afford an attorney one will be appointed for you at no charge.” That applies to criminal defendants only; in civil courts there is no right to a court appointed attorney.
What must the party bringing the lawsuit prove?
A plaintiff starts a civil case by filing a complaint, which consists of various allegations against the defendant. The party filing the complaint has the burden of proof, meaning they must prove their allegations to the judge or jury. Think of the burden of proof as a threshold or standard that a party seeking to prove a fact in court must reach in order to have that fact legally established.
In civil cases, the plaintiff has the burden of proving his case by a preponderance of the evidence, which means that more than 50% of the evidence points to something.
Trial by Judge or Jury?
Civil cases are often heard and decided by a judge, who makes all rulings in the case, including the final judgment. Either party to a civil case may demand a jury and that demand will be honored provided the party making the demand posts the required jury fees. In a jury trial the judge makes all rulings during the case and at the end of the case he instructs the jury on the applicable law. The jury makes the final judgment and awards damages, if any.
Now that we have explained the basics of the civil court system we can turn our attention to how parents become plaintiffs.
The most common school related scenario occurs when a child, while in the custody of the school, is injured. The parent then brings a lawsuit to recover damages for the child’s injuries. Damages is the legal term that means financial compensation or loss or injury.
Typically, the complaint in the above scenario will allege:
- negligent supervision,
- negligent hiring and in the event of death, a
- wrongful death cause of action.
- (See the textbook chapter on negligence and the on line course for more detailed information.)
Simply stated, to substantiate a claim based upon negligence, the parents must prove that the school’s staff owed a duty of care to the child, which duty was breached by the school’s carelessness and, as a result of that breach the child was injured. The first part of this proof—that the school staff owed a duty—is easily met reviewing the terms of the admission agreement. Beyond that the plaintiff must demonstrate who was supervising the children at time of the incident and who was responsible for hiring and managing that person. The next element of proof is slightly more complicated. Did the adults responsible for supervision act carelessly?
When Parent becomes a Plaintiff
In civil court, parents can sue the school on behalf of their minor child. We learned earlier in this article that children require an adult (guardian ad litem) to bring a lawsuit. In a lawsuit charging negligence by a particular teacher the plaintiff has the burden of proving, by a preponderance of the evidence (51%), that the teacher was negligent. Over defense objection, the plaintiff’s attorneys will attempt to admit evidence to malign the teacher’s character in front of the jury by any means necessary. The plaintiff’s attorneys aim is two-fold: (1) to try to intimidate the defendant into a settlement and (2) disparage the teacher at trial. The tactics and investigation may include the following:
- Producing embarrassing information found on social media (e.g. illicit text messages and photographs)
- Producing witness testimony and electronic documentation about prior bad acts (e.g. cell phone use while supervising children, abandoning children unsupervised)
- Calling witnesses to testify about the teacher’s reputation in the community
- Presenting evidence of prior incidents of unprofessionalism (e.g. inappropriate attire, language and conduct)
- Presenting documentation of reprimands, disciplinary action and termination to prove the school was negligent in hiring and supervising the teacher
- Reprimands and personnel complaints by current and previous supervisors
- Prior licensing violations especially high level Type A violations and complaints
- Prior instances of failing to take action when legally obligated to do so.
- Lack of qualifications required by law and/or standard in the industry (CPR and first aid, credentials, EPI pen training)
- Past criminal conduct and other civil lawsuits
This is a short list of documents, photographs, video and audio evidence the Plaintiff will attempt to discover and produce at trial to help prove the teacher is generally careless or negligent, but the plaintiff still must prove that the teacher was careless or negligent as it relates to the particular circumstances of the child’s injury. Although the rules of evidence pose significant limits on the use of character evidence to embarrass a trial witness, there are sufficient permitted uses such that attorneys will always press to get as much negative stuff as they can.
Here are a few best practices to keep in mind as you manage your relationship with parents.
- Maintain a professional distance from parents/clients. This includes when involved in face to face and telephone conversations, text messages, emails and all social media. Ask yourself, if the parent repeated contents of communications in court, how would it look to the judge or jurors?
- Document important conversations and keep a member of management in the loop. Supervisors do not like to be caught off guard with potential controversies between staff and parents.
- Keep in mind that the family is the school’s client, not just the child in class. The entire school can be on the hook for the representations one staff member makes to parents.
- Manage expectations of parents. It is best to understate and over deliver than to over promise and under deliver.
- Include a witness whenever reasonable and feasible. It never hurts to have a parent meeting with two staff members present. Someone can pay attention to nuance and listen carefully. Also, teachers will be presenting a united front. Although this is a drain on staffing and the payroll, it may help avoid miscommunication and misunderstanding.
- Follow up in writing. In some situations, it may be a good idea to memorialize conversations by text message or email to confirm that everyone is on the same page. This gives everyone an opportunity to clear up any misunderstandings and keep a clear record. You may be surprised to learn that texts and emails memorializing what transpired can make a huge difference in litigation.
- Avoid gossip. Hands down, this is the single most infectious virus in your organization. Rumor and innuendo have devastated careers and legacies. Remember, if you would not want to read your statements on the front page of the local newspaper, then don’t say it!
In conclusion, parents become plaintiffs when they sue a school and its teachers on behalf of their injured child. In order to prove the teacher negligent, the plaintiff must prove to the jury that the teacher was negligent and/or that the leadership was negligent in hiring and supervising staff. The plaintiff’s attorney will try to prove the case against the school by introducing damaging evidence such as compromising photos, prior bad acts, criminal activity and the like. In order to safeguard against such attacks, the best practices list above is a great place to start.
We began this article describing how we embrace children and families with open hearts. Now, we are encouraging you to connect your heart with our head. Consider all aspects of the teacher – family relationship when interacting with your clients.
Lawsuit – a claim or dispute brought to a court of law for adjudication.
Complaint – A document filed with the court to initiate a lawsuit. It contains various factual and legal allegations that must be proved in court.
Plaintiff – a person who brings a case against another in a court of law.
Victim – injured party
Standard of Proof – the level of certainty and the degree of evidence necessary to establish proof of facts. In a civil case it is the “preponderance of the evidence,” which means that more than 50% of the evidence points to something.
Defendant – an individual, company, or institution sued or accused in a court of law.
Guardian ad litem – a person the court appoints to investigate what solutions would be in the “best interests of a child.”
Small Claims Court – Small Claims Court handles civil cases asking for $10,000.00 or less in damages. It is a special court where disputes are resolved quickly and inexpensively. Rules are simplified and the hearing is informal. There are no lawyers, no rules of evidence, and no juries. You don’t need to be a United States citizen to file or defend a case in Small Claims Court.
Negligence – failure to use reasonable care, resulting in damage or injury to another
Duty – a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence.
Breach – when one person or company has a duty of care toward another person or company, but fails to live up to that standard. A person may be liable for negligence in a personal injury case if his breach of duty caused another person’s injuries.
Causation – a means of connecting conduct with a resulting effect, typically an injury.
Damages – an award, typically of money, to be paid to a person as compensation for loss or injury