Running head: TORT AND LIABILITY 1

Karen I Villatoro-Gonzalez

Professor Sherry Herington

EDU210 * Artifact #5

May 6, 2016
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TORT AND LIABILITY

ABSTRACT:

Ray Knight middle schooled was accidentally shot by his friend during a suspension from

school. The parents were unaware that he was suspended and in this artifact, we study cases that

will either support or not, define terms and help us understand our responsibilities. We will be

covering and cases such as Pistolese v. William Floyd union Free District, Goss v. Lopez, Joseph

Jerkins v. Anderson and the Pleasantville Board of Education. The terms we learn are the

meanings of foreseeability and its clauses, contributory and comparative negligence as well as

Tort Claim and Liability. At the end, we come to a conclusion of what we would rule in this case

and if the action was something foreseen by the district or just an accident with no valid case for

a lawsuit.
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Ray Knight was accidently shot while visiting a friends house during a

suspension which his parents were unaware of. In the case of Pistolese v.

William Floyd union Free District, we see a case where the district is sued for

negligence and we compare its outcome to our case at hand. In this case,

late June 2008 during the last day of the school year 2007-2008, an infant

was assaulted by other youths as he walked home from school instead of

riding the school bus as he normally did. The incident occurred about 30

minutes after the child left the school grounds and while the schools are

under a duty to adequately supervise the students in their care, they are not

insurers of the safety of their students. A schools duty is equivalent with and

associated with its physical custody and control over a child and its custodial

duty ceases once the student has passed out of its range of authority and

the parent is perfectly free and able to reassume control over the childs

protection. In this case, the incident occurred at a time when the injured

plaintiff was no longer in the defendants custody or under its control and

was outside of its range of authority. They granted the defendants motion

that they had demonstrated prima facie (based on first impression, accepted

as correct until proven otherwise) entitlement to judgement as a matter of

law and the plaintiffs failed to raise a triable issue of fact. They also failed to

articulate any no speculative basis to believe that discovery might yield

evidence warranting a different result. If we compare this case to the one of

Ray Knight, we can say the same, that the school did not foresee the
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outcome of the situation after suspension and should not be held

responsible. However, I feel that they should be responsible because it is

something very different; suspension is something that you have to notify

the parents about and therefore making this case a little different. We will

review further and get to a conclusion after examining other cases as well as

foreseeability which is a reasonable anticipation of the possible results of an

action such

as what may happen if one is negligent or consequential damages resulting

from a breach of contract. In the law of negligence, the foreseeability aspect

of proximate cause coincides with the event which is the primary cause of

injury and whether is established by proof that the actor, as a person of

ordinary intelligence and circumspection, should reasonably have foreseen

that this or her negligent act would imperil others. Whether by event that

transpired or some similar occurrence, and regardless of what the actor

surmised would happen in regard to the actual event or the manner of

causation of injuries.

In another case of Goss v. Lopez nine students at two different high

schools and one junior (middle) school in Columbus, Ohio were given a 10

day suspension from school. The school principals did not hold hearings for

the affected students before ordering the suspensions, and Ohio law did not

require them to do so. The principals actions were challenged and a federal
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court found that the students rights had been violated. The case was then

appealed to the Supreme Court. In a five to four decision, the Court held

that because Ohio had chosen to extend the right to an education to its

citizens, it could not withdraw that right on the grounds of misconduct

absent fundamentally fair procedures to determine whether the misconduct

had occurred. The Court held that Ohio was constrained to recognize

students entitlements to education as property interests protected by the

Due Process Clause that could not be taken away without minimum

procedures required by the Clause. The Court found that students facing

suspension should at a minimum be given motive and afforded some kind of

hearing. If we look at our book, it states that in 1969, Justice Black noted

School discipline, like parental discipline, is an integral and important part of

training our children to be food citizens-to be better citizens.

The book continues to tell us that school staff has been empowered with

authority and duty to regulate pupil behavior in order to protect the interests

of the student body and the school. Reasonable punishments or disciplinary

actions can be given to students if they do not abide by the rules in place

however, courts can and will intervene if disciplinary procedures are arbitrary

or impair students protected rights. It stated here again that procedural due

process should be afforded to students prior to the imposition of

punishments. For minor penalties, an informal hearing is sufficient but for

more serious disciplinary actions, formal procedures are required. Here is

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states that the school should notify parents, the plaintiff has the right of

representation by counsel and an opportunity to cross examine witnesses if

necessary. These more serious disciplinary actions include suspension,

expulsions, academic sanctions, and transfer to other programs or schools.

Now, if we compare this case along with what is found on the Legal rights of

teachers and students we can say that the parents of Ray Knight have

defensible grounds to pursue liability since they were not informed of the

suspensions which caused injury to their son. The school can state that they

sent written notice and was not given to the by Ray and it will just be the

plaintiff vs the defendant proving cause.

We are asked to look into contributory and comparative negligence and

after careful review and understanding, it explains the following. Accidents

can take place every day at any time and people can cause injury to

themselves and /or to property. We usually ask what happened and who was

at fault that is when contributory and comparative negligence takes place to

address these questions and to allocate fault between parties when the

answer to the question is not clear. Contributory means that a party may

have contribute to an act of negligence or are

comparatively negligent for his or her own injuries. Lets first review the

term negligence. Negligence is used to characterize conduct that creates an

unreasonable risk of harm to others. If you are negligent and your negligent
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causes another person to become injured then you are legally responsible for

paying damages. According to law and case facts and description found, in

order to succeed on a negligence case, the party will have to prove the

following elements:

The defendant owed a duty toward the plaintiff (reasonable care for

others safety)

The defendant failed to act in a reasonable way or breached its duty

The defendants breach was the proximate cause of the injuries (it

should have been foreseeable)

The plaintiff suffered injuries for which he or she may claim damages.

Contributory negligence is used to characterize conduct that creates

unreasonable risk to ones self it creates a duty for the individual to act as a

reasonable person. When the person does not act reasonable and cause

injury, that person may be held entirely or partially responsible for any

resulting injury even if another party was involved. For example a car that

ran a red light and got hit by the car that had the right of way. If in this case

a law suit is filed, the defendant (the person sued) may then assert a

contributory negligence claim against the plaintiff (the person filing the

lawsuit). If the defendant is able to pr0ove the contributory negligence

claim, then the plaintiff may not be able to recover damages or they may be

reduced to reflect her role in the resulting injury. In comparative negligence

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an approach to contributory negligence, wherein each partys negligence for

an injury is weighed when determining damages. There are two approaches

to the comparative negligence per facts found:

Pure Comparative Negligence: where the plaintiffs damages are

totaled and then reduced to reflect hi/her contribution to the injury. For

example, the injury caused $15,000.00 in damages and was awarded

to the plaintiff yet the judge determined that he or she was 50%

responsible for the injury they received than the award will really only

be $7500.00

Modified Comparative Negligence: stated to be the most common

approach is where the plaintiff will not be awarded anything if he or

she is found to be either equally responsible or more responsible for

the resulting injury. The plaintiff must not be more than 50% fault for

the resulting injury in order to recover damages.

With all of this being compared, the outcome of our case for Ray Knight still

may be a little tricky, as a defendant I can claim that a notice was sent and

that Ray did not give it to his parents and that is beyond our control. As a

plaintiff I can say a letter was not given to Ray and therefore the

responsibility of the accident and negligence is on the school for failure to

provide adequate notification. The parents can argue that the school

breached its duty by not following school policy procedures.

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Looking at other cases, I was referred to Joseph Jerkins v Anderson and

the Pleasantville Board of Education. In this case, on June 14, 2001 Joseph

Jerkins a nine year old third grader who was always picked up from school by

his father or older brother got home early from school do to an early

dismissal. Joseph normally informed the family members of the early

dismissal but did not do so and forgot to mention that on the 15th, there

would be another early dismissal. On the 15th, the older brother got to the

school as usual to pick Joseph up and he was nowhere to be found. At

around 4:oopm he was struck by a car driven by Soweto Anderson which left

him with severe spine and brain injury rendering him quadriplegic. Clarke

the principal of the school

stated that they do provide the parents with enough notification of the early

dismissal dates such are informed in the handbook given to the parents at

the beginning of the school year. Even though Joseph started at South Main

Street in October of 2000, there were still ample notifications made by the

school in form of the 2000-2001 calendar available to parents all year as well

as in meetings/events and included in the newsletter sent to parents each

month. The newsletter is not only given to the students but is also mailed

out to the parents and a copy is always kept in the front office as well. In this

school district, children walk to school except if the parents choose to pick

them up or they attend the after school program called K.E.Y.S. so there is no

written policy stating that upon dismissal students must be released to the
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care of an adult or guardian. Josephs father, Charles, testified that when he

registered Joseph he was given a registration packet but there was nothing in

the packet for him to sign and return regarding the dates on the calendar.

Neither Charles nor Charles Jr. (Josephs older brother) did not recall seeing

any newsletters in the mail and on December 4, 2002 they filed a complaint.

They stated the following; the driver; Soweto was negligent in the operation

of the vehicle, the owner of the vehicle, Kemba negligently entrusted the

vehicle to Soweto and that that the Board and Clarke negligently, carelessly

and recklessly failed to exercise their duty of reasonable supervision and

care for Joseph. They alleged that more than just the serious and permanent

injuries, they will also be required to devote their resources for Josephs care

and now are deprived from Josephs companionship and filed for emotional

distress. On April 7, 2004 the judge determined that the Board and Clarke

had no duty or reasonable care for Josephs safety and stared that it is

understandable that school children might get injured several hours after

leaving school but it is not the school districts responsibility to prevent such

injuries. On June 25, 2004 the judge ruled

in favor of Board and Clarke and the plaintiffs claims against Kemba and

Soweto were later settled.

Under the Tort Claims Act, a public entity is liable for an injury caused

by an act or omission of a public employee who acts within the scope of his
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or her employment. In Josephs case, the plaintiff alleged that the

defendants are liable because they owed Joseph a duty of reasonable care

and breached that duty by allowing Joseph to leave without supervision. The

ability once again to foresee injury to a potential plaintiff is a significant

consideration in the determination of a duty to exercise reasonable care and

in this matter, the risk of harm was foreseeable, Joseph was only nine years

old. There was no adult or responsible to meet him after school during

dismissal and it is quite foreseeable that a child his age dismissed early from

school without proper supervision could thereafter run into the path of a car

and get struck. The judge did stress the fact that several hours had passed

since dismissal from school and the accident yet it was foreseeable. Along

with the foreseeable nature of this case is the consideration of duty of

reasonable care upon the defendants and in this case it weighs in favor of

imposition of a duty in this case. The school officials have the power to act

as guardians when the children are under their care and that includes the

protection from foreseeable dangers, whether those dangers arise from

careless acts or intentional transgressions of others. The defendant acted

negligent because even though the accident happened later, the schools

responsibility for its younger students does not end when the dismissal bell

rings. The school may take reasonable steps to ensure that younger

students are protected from foreseeable risks of harm which occur when they

are dismissed from school without supervision. Although the

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defendant had a duty to exercise reasonable care for Josephs safety, there is

still an issue with whether the Board and Clarke breached that duty. There is

evidence to support that the district took the steps to advice parents of the

dismissal times. The plaintiffs also argued that Clarke failed to employ

sufficient staff to supervise the dismissal and state that therefore Clarke is

not entitled to immunity. The trial judge determined that defendants were

entitled to summary judgement because defendants owed no duty to Joseph

in respect to the accident. Defendants have not argued that the order of

summary judgement should be affirmed on the alternative grounds that they

are entitled to immunity for discretionary actions. This issue should be

addressed in the first instance by the trial judge and has been reversed and

remanded for further proceedings consistent with the opinion stated here in

this case.

With all of the facts presented, some supporting and others not, I feel

that Ray Knights parents have defensible grounds to pursue liability against

school officials because they failed on their duty for care. There is no

evidence to support that a telephone call was made, a letter was sent or

meeting was held to advice the parents of the suspension. Obviously if a

child is suspended, it is foreseen that they may be in danger of getting in

further trouble or injured especially when the parents are unaware. Fault

may definitely be on the school district since they did not follow the any

procedures on notification and lets say that the school could not have

foreseen the accident, they failed. Rays parents have to show that the
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district did not follow procedures and the court would rule in favor of the

parents.

References:

Anthony Pistolese, etc., et al., respondents, v William Floyd Union Free

District, appellant

Foreseeability

Goss v Lopez

Legal rights of teachers and students Book 201

Contributory and comparative negligence

Joseph Jerkins v Anderson and the Pleasantville Board of Education

Tort Claims Act and Liability