When kids get hurt because of a school's negligence, whose insurance pays?
Kids are like Nerf™ balls; they’re resilient and bounce back. Normally they can take a ton of wear and tear on a playground, running around and hollering at the top of their lungs. Bruises and scrapes come with the territory. When asked where a particular boo-boo came from, it’s usually greeted by a shrug.
Sometimes, however, they can really get injured. If it happens at home, the parent would gather the crying child up and whisk him or her away to the hospital, relying on the family insurance plan to get them all through this trying time.
What happens if that child is injured somewhere else? Like at school? You’ll have many questions running through your head – ("Can I sue a public school?" "Do I use my own insurance?" "Do different schools handle this differently?" "What if my child was hurt by another child at school?")
It can be difficult to determine who is responsible, because when the child is in the thicket of other kids, how do you know who started a fight when everyone is pointing fingers? It could’ve even been the child’s own negligence, for all you know.
Things can get darker, too. What if an adult were responsible? What happens then?
We’re here to sort things out.
How can a person be held liable when a child is hurt?
Schools are supposed to provide safe environments for children during the time they are away from their families. They operate almost as parents during the school day. In fact, there is a term for this: in loco parentis, or "in place of the parent." As such, they have to provide for kids’ needs in much the same way that parents do: food, shelter, transportation, medication and safety.
Failing in any of those areas is a recipe for negligence. (As a quick reminder, negligence is when the plaintiff, also known as the victim, was owed a duty of care by the defendant. The defendant violated that duty of care, and that violation caused the plaintiff damages.)
But the question is, who pays for treatment? That is where it gets tricky. It all depends on what type of school your kid goes to, where your kid was hurt, what time of day your kid was hurt, and what degree of involvement your kid had in the accident.
Do the schools have any defenses?
Schools have a few defenses, the most important of which is sovereign immunity.
They are treated as political subdivisions if they are public schools, so the first question to ask is whether the school is public or private.
If the school is private, you can sue the school directly. If the school is public, reporting the accident to the district comes first. You must first file a claim with the school district before filing a lawsuit – and you generally only have 60 to 90 days, because it is treated as a government case.
Always check the statute of limitations in your state so that your case is not thrown out.
What if I signed a waiver?
Additionally, waivers are another defense.
When playing sports, students usually sign waivers beforehand that acknowledge the risks of playing the sport. These aren’t corporate legal documents, but they will get the job done if necessary. Make sure to check with an attorney to see how strong the document is and whether there are any holes you can poke through.
What if my child is hurt after or before school hours?
One more defense is school hours. If students are on the playground and get hurt, but it’s a Saturday or not during school hours, the school will not be held liable.
What sort of problems can happen at school?
Anyone within a school can be held liable for personal injuries to a child. It’s how the scenario arises that sets it apart.
- Bullying: When one student calls another names, it is awful, unfortunate and unnecessary. It is also something that happens routinely on a playground and can only be dealt with by detention or time-outs. When one child physically assaults another, however, things quickly escalate. The parents of the injured child could sue the parents of the bully for medical damages, as the bully’s piggy bank probably hasn’t accrued much interest yet and doesn’t follow an index fund.
- Negligent supervision: There are a lot of kids to watch at school – hundreds, usually, and teachers are often short-staffed. If even one of those children wanders off, gets hurt or tries to make a break for it (which has happened), that school can be held responsible.
- School bus injuries: These can take a few forms. For instance, say there were personal injuries because of the bus itself (product liability or defect) or a collision with another vehicle. The collision would most likely fall under an insurance claim. The product liability claims would be against the manufacturer of the product. If a manufacturer puts a product into the stream of commerce, they are responsible for it.Another instance is negligence by an employee. A bus driver might not be paying attention to the ruckus behind him and a child can be injured. Oftentimes people wonder why school buses don’t have seatbelts; well, it’s because seatbelts don’t make school buses any safer. However, this also lets kids move around more easily, which means that drivers have to watch the road and the children behind them.
- Food poisoning: Every kid complains about the quality of cafeteria food, but actual food poisoning has made the news numerous times. When it does, the school is on the hook. However, if the food was provided by an outside vendor, this could also be a products liability issue, meaning that the manufacturer providing the product put a tainted food into the stream of commerce and thus is responsible for it, no matter where it ended up.
- Neglecting to provide medications: This is potentially a huge issue. Let’s say your kid is diabetic and desperately needs insulin, but he is also afraid of injecting himself because hey, needles are scary. He goes to the school nurse to do it, but the nurse has decided to take a quick break. Nobody is around to inject your child. The kid goes into shock. Who would be held responsible? (This is a rhetorical question.)
- Defective school equipment: This is another products liability issue. A classic example would be the gymnastics equipment used in gym class. If the balance beam fell apart while a child was using it or the vault collapsed while a kid was – well, vaulting – that would be fodder for a products liability suit against the manufacturer of the gymnastics equipment. This would be a case of strict liability, which exists in cases that carry risks of harm.
- Injuries in school sports: This is a slightly different scenario because the student most likely signed a waiver prior to participating, as we mentioned above. This protects the school, though it may not be iron-clad. Having an attorney review the waiver would be a prudent action, depending on how severe the injury is.
- Slip and fall: This could be from a loose handrail, snow or ice that should have been removed, or a wet floor. Even if a janitor put up a "Wet Floor" sign, negligence against the school could potentially be argued. This also ties in a premises liability claim for the school, since they are responsible for the property and must maintain it for anyone who enters, even those they don't necessarily expect.
- Exposure to asbestos: Many schools have been updated at this point to remove asbestos, which was insulation material used because its ancient Greek meaning literally means "inextinguishable." It also causes mesothelioma. Exposure over a long period of time can result in cancer.
- School shootings: Parents have attempted to bring lawsuits against school districts on behalf of their injured or deceased children after school shootings – which is understandable. They want someone to blame. These are difficult to prove, because in order to win a negligence case, the school district’s actions must be the cause of the victims’ injuries. In other words, but for the district’s actions, the injuries would not have happened. The injuries must be foreseeable for the plaintiffs to recover damages in a case like this. This is called "proximate cause" and is essential in proving a case of negligence. Teachers can generally tell which children are troubled, but foreseeing a school shooting is nigh on impossible.