Risk Management: Creating a Safe Environment

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Risk ManagementCreating a Safe Environment
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Learning Outcomes

• Students are able to
• Describe the concept of in loco parentis as
  relates to duty and standard of care
• Identify the coverage areas for managing risk
• Recognize the importance of due process in
  handling student discipline
• Explain the criteria to be prudent, reasonable,
  and foreseeable in avoiding negligent tort
• Analyze cases to determine liability of educators

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What is Risk Management?

• Risk management is a coordinated, effective,
  pre-response and post-response to a schools
  districts liability exposures developed through
  planning, organizing, directing, and monitoring a
  districts activities and assets
• Risk management is the process of minimizing
  accidental loss by anticipating and preventing
  the occurrence of unplanned events
• Ingredients for risk management Authority,
  Accountability, Responsibility, and Training
  (AART)

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• Principles of in loco parentis
• Definite responsibility to the school for the
  welfare of each student it serves in the absence
  of the students parent or guardian
• The students interests, welfare, and safety are
  directed by responsible adults trained as
  teachers and administrators
• Duty and standard of care by educators
• A hazard is anything that can cause harm
• A risk is a combination of the likelihood of harm
  occuring and the severity or consequences should
  it occur

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Components of Risk Management

• Risk identification
• Risk assessment
• Risk Control

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• Risk identification
• Implementation of safety campaigns, safety
  instruction, warning signs, and maintenance
  carried by schools and etc.
• Risk assessment
• Periodic check-ups on electrical wiring and
  appliances, plumbing and sewage systems, fire
  drills, conditions of physical structures
  staircases, grilled windows and laboratories

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• Risk control
• Safety procedures such as the use of log books
  for recording past accidents, list of emergency
  telephone numbers, fire extinguishers and first
  aid boxes

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Why do we need risk management in schools?

• Accidents and ill health can ruin lives, damage
  reputations and cost money
• It is not managerially possible for schools to
  completely eliminate risks nor fiscally prudent
  to insure potential risk
• Schools cannot avoid accountability for its
  actions or inactions
• A well-planned, active program of risk
  anticipation and prevention is more preferable (a
  pro-active approach)

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What does it include?

• Student and staff safety (bomb threat,
  death/suicide, gun/other weapons in school,
  hostage situation, kidapping/childnapping/missing
  student, medical emergency, sexual assault,
• Health
• Child abuse/abduction, drug testing, drug
  testing and student athletes, drug testing and
  employees, students/employees with Aids
• Chemical safety/natural gas/other toxic odor
• Environmental affairs
• Property protection
• Contingency planning
• Security

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• Transportation
• Third party liability
• Contractual liability

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Implications for Risk Management

• Accidents, incidents, or transgressions are
  organizational managerial problems, not people
  problems. They are often dealt with ex post
  facto rather than through active program of risk
  anticipation and prevention
• Insurance should be thought of only as financial
  protection for unexpected failure in risk
  management programs, not as the sole remedy for
  all accidental loss
• Risk factors diminish with the expansion of the
  practice of prevention law

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• The lower the knowledge of legal procedures and
  the practice of judgment and foreseeability is,
  the higher the incidence of liability,
  environmental, and personnel loss
• Effective risk management requires effective
  leadership

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Due Process

• There are two kinds of due process
• Procedural due process
• Substantive due process
• Procedural due process
• It entails fair warning and fair hearing
• Fair warning A person must be aware of the
  rules to follow, or behavior that must be
  exhibited, and the potential penalties for
  violation

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• Fair hearing
• The individual must be given written statement
  of the charges and the nature of the evidence
• The individual must be informed of certain
  procedural rights
• Adequate time must be provided to prepare a
  defence
• There must be an opportunity for a formal hearing

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• Substantive due process
• It is concerned with the basic legality of a
  legislative enactment
• Guideline to ensure substantive due process
• Legality
• Sufficient specificity
• Reason and sensibleness
• Adequate dissemination
• Appropriate penalties

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Landmark CasesGoss v. Lopez (1975)

• Nine students at an Ohio public school received
  10-day suspensions for disruptive behavior
  without due process protections. The Supreme
  Court ruled for the students, saying that once
  the state provides an education for all of its
  citizens, it cannot deprive them of it without
  ensuring the process protections

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Surat Pekeliling Ikhtisas

• Bil. 6/68
• Pembuangan murid-murid daripada sekolah rendah
  kerana kelakuan curang
• Bil. 6A 1975
• Disiplin murid-murid menghisap rokok
• Bil. 2/1976
• Potongan rambut murid-murid
• Bil. 8/1983
• Mengenakan hukuman biasa terhadap murid-murid
  yang melakukan perbuatan salah laku yang tidak
  dinyatakan dalam peraturan-peraturan pelajaran
• Bil.3 1993
• Lapor kepada polis salah laku yang berbentuk
  jenayah
• Bil. 7/1995
• Tatacara mengenakan tindakan dan hukuman terhadap
  pelajar-pelajar sekolah

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Brown V. Board of Education (1954)

• The court declared state laws establishing
  separate public schools for black and white
  students unconstitutional. The decision
  overturned the Plessy v. Ferguson decision of
  1896 which allowed state-sponsored segregation.
  This ruling paved the way for integration and was
  a major victory of the civil rights movement

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Five-Step Approach to Risk Management(London
Borough of Bexley)

• Step 1 Look for the hazard
• Step 2 Decide who might be harm and how
• Step 3 Evaluate the risk
• Existing precautions are adequate/more
• should be done?
• Step 4 Record your findings
• Step 5 Review your finding periodically and
  revise
• if necessary

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• Rate severity or consequence
• Extremely harmful Death, major injury, major
  damage or loss to property or equipment
• Harmful Over three day injury, damage to
  property or equipment
• Slightly harmful Minor injury or minor to
  property or equipment
• Rate likelihood
• Highly likely Extremely or highly likely to
  occur
• Likely Frequent, often likely to occur
• Unlikely Slight chance of occurring

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Risk Rating Chart
Extremely Harmful (A) Harmful (B) Slightly Harmful (C)
Highly Likely (1) Unacceptable (U) High (H) Medium (M)
Likely (2) High (H) Medium (M) Low (L)
Unlikely (3) Medium (M) Low (L) Trivial (T)
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Action Phrases

• A1 Unacceptable (U)
• Must receive immediately attention, activity
  should be halted, until adequate controls
  implemented
• A2 B1 High (H)
• High priority, urgent attention to reduce
  severity and/or likelihood
• A3 B2 C1 Medium (M)
• Medium priority, must receive attention to
  reduce severity or likelihood
• B3 C2 Low (L)
• Lower priority but must receive attention to
  verify if risk can be reduced
• C 3 Trivial (T)
• Lowest priority

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Tort (Tortus in Latin)

• Tort is an actionable wrong, exclusive of a
  breach of contract, that the law will recognize
  and set right. A tort is a legal wrong against
  the person, property, or reputation of another
  (Tort ialah satu perbuatan salah di mana mangsa
  mengalami kecederaan fizikal, reputasi atau pada
  hartanya)
• Classification of tort
• The direct invasion of some legal right of the
  individual (e.g. invasion of privacy)
• The infraction of some public duty by which
  special damage accrues to the individual (e,g,
  denial of constitutional right)
• The violation of some private obligation by
  which damage accrues to the individual (e.g.
  negligence)
• Negligence is the primary basis of tort liability
  suits filed against school districts (Kecuaian
  merupakan asas kepada dakwaan liabiliti yang
  dikemukakan terhadap ke atas sekolah)

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• Kecuaian sebagai satu tort
• Kecuaian bukan setakat tidak mengambil peduli
  atau perlakuan chuai tetapi menampilkan konsep
  yang kompleks mengenai kewajipan, kemungkinan dan
  kerugian yang dialami oleh seseorang (Hakim
  Lord Wright, 1934)

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Two Major Categories of Torts

• Intentional Tort
• Refer to offenses committed by a person who
  attempts/intends to do harm
• Intent refers to the awareness that injury will
  be the result of the act
• A common type of intentional tort is assault or
  battery
• Assault refers to an overt attempt to physically
  injure a person/create a feeling of fear and
  apprehension of injury
• No actual physical need to take place for an
  assault to take place

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• Battery is an intentional tort that results from
  physical contact
• A person threatens another causing apprehension
  and fear (assault) actually strikes another
  person and result in injury (battery)
  International tort

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Contoh Kes

• Seorang guru mendapati dua orang pelajar sedang
  bertumbuk dan bertindak untuk meleraikan mereka.
  Dalam proses berbuat demikian, salah orang
  pelajar berdegil dan mendakwa guru tersebut telah
  mencabar hak asasi beliau kerana memegang
  tangannya dan memekik Lepaskan tangan aku, saya
  berhak untuk berbuat demikian!
• Bolehkah guru ini didakwa di bawah kesalahan
  assault/battery?

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Compensatory damages vs. punitive damages

• Compensatory damages Actual loses (medical
  bills, lost wages/income/court costs and the
  such)
• Punitive damages Monetary awards to punish the
  defendants for wrongful actions and deter such
  actions in the future

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Reasonable/Prudent Person (Orang yang
munasabah/biasa serta waras)

• Negligence is doing something that a reasonably
  prudent person would not have done, or failing to
  do something that a reasonably prudent person
  would have done when confronted by like or
  similar circumstances
• Reasonable/prudent person
• The defendant is not identified with an ordinary
  individual who might occasionally do unreasonable
  things, instead, he/she is identified as a
  prudent and careful person who is always up to
  the standard
• (Pengetua/guru tidak perlu wajib menjadi seorang
  yang dianggap sempurna tetapi memadai sekadar
  sebagai seorang yang munasabah)

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• The degree care exercised by a reasonable teacher
  is determined by
• Training and experience of the teacher involved
• Students age
• The environment in which the injury occur
• The type of instructional activity
• The presence/absence of the supervising teacher
• Students disability (if any)

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Duty and Standard of Care (Kewajipan/Standard
berjaga-jaga)

• The concept of in loco parentis is to be
  practiced
• Duty is an obligation that derives from the
  special relationship between parties such as that
  between an employee and a student, the
  district/government and an employee, or the
  district and a patron.
• The duty to protect is part of teachers/administr
  ators responsibilities
• Standard of care is relative to the need and the
  occasion, what is proper under one circumstance
  may be negligent under another.

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• The standard of care imposed upon school
  personnel in carrying out this duty to supervise
  is identical to that required in the performance
  of their other duties. This uniform standard to
  which they are held is the degree of care which a
  person of ordinary prudence, charged with
  comparable duties, would exercise under the same
  circumstances. (California Supreme Court)

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• Duties include, but not confine to the following
• Adequate supervision
• Maintenance of equipment and facilities
• Heightened supervision of high-risk activities

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• (Pentadbir dan guru di sekolah berada di bawah
  satu kewajipan bertindak secara good faith
  terhadap majikan mereka)
• Isu mengimbangi kewajipan berjaga-jaga dengan
  keperluan memberi peluang kepada pelajar untuk
  memajukan kebolehan bertanggungjawab terhadap
  keselamatan diri sendiri
• Kewajipan berjaga-jaga kepada pelajar oleh pihak
  sekolah terdiri daripada dua aspek
• Memberikan penyeliaan yang cukup
• Menyediakan tempat dan kemudahan serta alat
  sekolah yang selamat

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Duty and Standard of Care and Student Age

• Two age levels are significant in terms of court
  decisions Ages 1 14 and Ages 15 18
• Dunklee and Shoop (2006) believe that the
  required degree of duty and standard of care
  decreases during the elementary school years
• The onset of puberty and adolescence may require
  a return to maximum levels of duty and standard
  of care during the middle school years, and that
  the required level decreases progressively for
  senior and high school students

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Foreseeability

• Foreseeability is the degree to which the
  defendant could have or should have reasonably
  been able to anticipate the risk of injury /harm
  to the plaintiff that might result from the
  action/inaction (Alexander Alexander, 2002)
• Foreseeability regarding the risks in an
  educational setting is greater due to educators
  superior knowledge, special skills, and
  professional experience
• If a school administrator/teacher could have, or
  should have, foreseen or anticipated an accident,
  the failure to do so may be ruled negligent.
• The concept of foreseeability expects school
  employee to perform as a reasonably prudent
  person of similar training and circumstances
  could perform.
• If the ordinary exercise of prudence and
  foresight could have prevented an accident, the
  courts have ruled schools to be negligent when
  they have not avoided a foreseeable danger to
  students or adults.

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Types of negligence

• Nonfeasance Failing to act when there is a duty
  to act
• Misfeasance Acting, but in an improper manner
• Malfeasance Acting, but guided by a bad motive
• Prerequisites for a negligence action
• The defendant must have duty to plaintiff
• The defendant must have failed to exercise a
  reasonable standard of care in his/her actions
• The defendants actions must be the proximate
  cause of the injury to the plaintiff
• The plaintiff must prove that he/she suffered an
  actual injury

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• Empat syarat untuk plantif menuntut ganti rugi
  terhadap defendan
• Kewajipan berjaga-jaga yang sedia ada
• Kewajipan dimungkari akibat defendan gagal
  mematuhi tahap berjaga-jaga yang diperlukan
  (berdasarkan ujian orang yang munasabah)
• Kemungkiran kewajipan oleh defendan menyebabkan
  plantif mengalami kecederaan
• Terdapat satu perhubungan yang rapat antara
  kemungkiran dengan kecederaan plantif

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Contributory Negligence

• The injury is caused by students own negligence
  (need to be proved) then it is considered that
  the student has contributed to his/her own injury
• When a student disregards the instruction,
  warning,/advise of an educator, the student can
  be held liable for his/her own injury
• The courts (to date) have held that children
  under the age of 7 may not be held responsible
  for their own negligence

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Common conditions resultingin tort reliability
for negligence

• Failure to provide adequate supervision
  (foreseeability proximate cause (refer to case
  1), general and specific supervision (refer to
  case 2)
• Foreseeability If the school district could
  have, should have, foreseen or anticipated an
  accident, the failure to do so may be rule
  negligent
• Failure to aid the injured/sick
• Creation of further damage through misguided
  efforts
• Permitting students to play unsafe games
• Permitting use of defective equipment
• Maintaining attractive nuisances (unprotected,
  unguarded, unsafe condition that attract a child
  to play refer to case 3)
• Failure to provide adequate instruction
• Failure to give adequate warning

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• Entrusting dangerous devices to students
  incompetent to use them
• Taking unreasonable risks
• Improper organized field trips

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Cases

• Case 1
• A student was hit by a bat swung by another
  student. The teacher then was standing 30 feet
  away, passing milk, at the time of accident. Was
  the teacher liable?
• Case 2
• A six year old student was injured at a
  construction site next to an elementary school
  where remodeling was being done. School
  officials knew of the potential dangers at the
  site and reminded students daily to stay away
  from the area. No other precautions to protect
  students were taken. Was the school liable?

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• Case 3
• A young girl, who sustained an injury while
  watching a baseball game. While playing around
  an abandoned long-jump pit, she was frightened by
  a dog. She fell backward and cut her hand on a
  piece of broken glass in the pit that had been
  covered by sand. The girl presented evidence
  that the school knew of the dangerous condition
  as the schools janitor and school authorities
  had received written notification of the
  condition of the pit. Was the school liable?

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• Case 5
• Cliff Brown, a fifth-grade teacher, was standing
  at the front of his class when there was a knock
  at the door. He opened the door to find a person
  he vaguely recognized. She said her name was
  Mrs. Parson and she needed to take her son Brian
  to the dentist. Brian got his books, left, and
  was never seen again.

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• Safety issues
• Releasing a child to an adult
• School personnel should be very cautious about
  the physical custody of children
• Who has the parental right?
• The legal parent is that person whom the legal
  system recognizes as having the legal rights of
  parenthood
• How about child born to biological parents who
  are not married?
• In the case of divorce, it depends on whether the
  court grants sole/jount custody

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• Case 6
• A high school band member, drowned in a hotel
  pool while on a trip with the band. The student
  dove in the pool and minutes later was found at
  the bottom of the pool. Two chaperons assigned
  to supervise the pool activity immediately
  provided mouth-to-mouth resuscitation and
  continued to do so until the ambulance arrived.
  The parents of the student claimed the school was
  negligent in failing to provide adequate
  supervision for their son, who did not know how
  to swim.

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• Case 4
• A student fell into a ditch while attempting to
  catch a pass in a game of football played during
  the schools lunch period. The principal was
  aware of the ditch on the schools property but
  had made minimal attempts to warn students and no
  attempt was made to fill the pitch

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Types of negligence

• Omission
• Harm occurs due to the lack of care the law
  expects of a reasonable individual (e.g.
  nonfeasance)
• Commission
• Taking an improper action when there is a duty
  to acat
• Misfeasance may be either an act of commission or
  an act of omission

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Waiver of liability (permission slips)

• Dont rely on waivers because parents cannot
  waive their children claims for damages
• Waivers are useful for public relations purposes
• It is not true under the law that a waiver of
  liability truly protects the school or the
  teacher from court action
• Schools cannot be absolve of their obligation
  toward students by a parental waiver or release
• Parental waivers/permission slips do not relieve
  teachers/schools of liability if they fail to
  discharge their duties in an appropriate manner

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Safety Issues

• Abuse of students
• School Violence
• Gang behaviors
• Search and seizure

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Abuse of Students

• Teacher-to-student sexual abuse is a serious
  problem
• It happens on a continuum of unwanted touching
  to sexual relationships and serial rape
• Other adults involved include principals,
  janitors, bus drivers, and librarians
• The abuse include overly affectionately
  behaviors, inappropriate, noneducation-related
  contact, and inappropriate nonprofessional
  behavior

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Examples

• A teacher (male) had his arm around a girl
  student in a shopping mall
• Teacher telling sexually explicit jokes in class
• Personally taking young kids (first graders) to
  the restroom

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School Violence

• Gang behaviors
• Policy regarding Gang Activity (Developed by the
  Midlothian, Illinois School Board)
• No student on or about school property or at any
  school activity shall
• Wear, possess, distribute, display or sell any
  clothing, jewelry, emblem, badge, symbol, sign,
  or other things that is evidence of membership or
  affiliation in a gang
• Commit any act or omission or use any speech
  either verbal or nonverbal (gestures, handshakes,
  etc) showing membership or affiliation in a gang

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Gang Bahaviors

• Use any speech or commit any act or omission in
  furtherance of the interests of any gang/gang
  activity, including but not limited to
• A. Soliciting others for membership in a gang
• B. Requesting any person to pay protection or
  otherwise intimidating or threatening any person
• C. Committing any other illegal act or other
  violation of school district policies
• D. Inciting other students to act with physical
  violence upon any other person

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Kategori Kesalahan Pelajar

• Kategori
• Kesalahan berat
• Kesalahan sederhana
• Kesalahan ringan
• Kesalahan biasa
• Dokumen rujukan untuk menangani disiplin pelajar
• Ordinan Pelajaran 1957
• Peraturan-peraturan Pelajaran (Disiplin
  sekolah)1959
• Akta Pelajaran 1961/1996
• Pekeliling Ikhtisas KPM
• Buku-buku peraturan yang berkaitan

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Surat Pekeliling Berkaitan

• Bil. 16/98
• Menangani kegiatan genster di sekolah
• Bil. 6/2000
• Menangani masalah keselamatan, dadah dan genster
• Bil. 11/2000
• Membanteras jenayah di kalangan murid sekolah

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Search Seizure(Fourth Amendment)

• Protects rights of citizens to be secure in their
  persons, houses, papers and effects against
  unreasonable search or seizure
• It is the basis for litigation concerning the
  search of students lockers and personal
  belongings

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Search Seizure

• Search and seizure
• Balancing the schools legitimate need to obtain
  information and the students right to privacy
• A search shall be initiated by reasonable
  suspicion (less rigorous than probable cause
  required by a police officer)
• Level of suspicion varies on the circumstances
  or the situation (in case emergency)
• Source reliability
• Scope of the search degree of intrusiveness
  from search of a locker to a strip search
• Reasonable suspicion vs. common sense
• Lockers remain the exclusive property of the
  school (fairly low degree of suspicion is needed)

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Cont

• Bookbags and purses
• Requires a higher standard of protection for
  students, therefore school authority must
  exercise greater care
• Strip searches
• The most controversial search
• The courts have generally condemned strip
  searches in public schools
• A body cavity search is the most intrusive type
  of search and should not be conducted by school
  employee

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Student Discipline Corporal Punishment

• Corporal punishment and intentional torts
• Due process Procedural and substantive due
  process
• Corporal punishment is physical punishment
  applied to modify behavior
• The use of corporal punishment is based on the
  concept of in loco parentis
• School officials have broad authority to control
  the conduct of students, to take responsibility
  for conduct, and to punish misconduct that has a
  negative impact on the school where
  school-related activities are concerned (Dunklee
  Shoop, 2006)
• Corporal punishment must be differentiated from
  assault and battery

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Assault v. Battery

• Assault is the intentional thereat of harmful or
  offensive contact. The words must be accompanied
  by some overt act, no matter how slight, that
  adds to the threatening character of the words
• Battery is the actual intentional infliction of
  harmful or offensive bodily contact. It is the
  intent to make contact and not intent to make
  injury.
• For example, a teacher has intended only to
  threaten a student by grabbing the students arm
  and accidentally injures the student

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Corporal Punishment in Schools

• The first country to prohibit corporal punishment
  was Poland in 1783
• Corporal punishment in schools harms children and
  damages their education
• Children who are physically punished at school
  may become less likely than other children to
  internalise moral values, and may become
  depressed or aggressive.
• (The United Nations World Report on Violence
  Against Children)

63
Surat Pekeliling Ikhtisas Bil. 10/2001Semua Guru
adalah Guru Disiplin

• 3. semua guru telah diperuntukkan dengan
  tanggungjawab untuk memastikan murid-murid
  mempamerkan tahap disiplin yang tinggi.
  Pendekatan-pendekatan berbentuk pencegahan
  (preventive), didikan (educative), pembetulan
  (corrective), dan bukan hukuman (punitive) serta
  langkah yang sewajarnya hendaklah dilaksanakan
  terhadap semua masalah disiplin. Guru-guru
  hendaklah sentiasa mengimbangi semua pendekatan
  tersebut dengan sifat-sifat prihatin, penyayang,
  simpati dan empati terhadap masalah yang dihadapi
  oleh murid. Sementara itu, kebenaran bagi
  guru-guru melaksanakan hukuman terhadap kesalahan
  disiplin murid hendaklah dibuat secara nyata dan
  bertulis, iaitu pengetua/guru besar perlu
  menyediakan surat penurunan kuasa kepada
  guru-guru untuk melaksanakan hukuman tersebut.

64
Corporal PunishmentHukuman Dera

• Pengertian Hukuman Dera corporal punishment
• Hukuman dera (rotan) boleh dikenakan (kecuali ke
  atas murid-murid perempuan) tertakluk kepada
  syarat-syarat yang dinyatakan dalam
  Peraturan-peraturan Pelajaran (Disiplin Sekolah)
  1959.
• Dijalankan sebaik-baik sahaja sesuatu salah laku
  itu dilakukan oleh murid. Hendaklah dibuat
  setelah sesuatu salah laku telah dapat disahkan.
• Dijalankan oleh Pengetua / Guru Besar sendiri
  atau oleh seorang guru yang berdaftar yang telah
  diberikan kuasa secara nyata atau khas iaitu
  mengikut keadaan Perkara 6 Ordinan Pelajaran,
  1957, Peraturan-peraturan Pelajaran (Disiplin
  Sekolah) 1959.
• Hukuman dera hendaklah dijalankan dengan
  menggunakan rotan ringan dan pukulan rotan hanya
  boleh dibuat pada tapak tangan atau di bahagian
  punggung yang berlapik. Hukuman dera ke atas
  pelajar perempuan dilarang secara nyata dalam
  Perkara 5 Ordinan Pelajaran, 1957,
  Peraturan-peraturan Pelajaran (Disiplin Sekolah)
  1959

65
Surat Pekeliling Ikhtisas Hukuman Dera

• Surat Pekeliling Ikhtisas Bil. 1/1972
  Peraturan-peraturan (Tatatertib Sekolah)
  Pelajaran, 1959Guru Besar diberi kuasa
  mengenakan hukuman dera (Corporal Punishment)
  terhadap murid-murid lelaki dengan menggunakan
  rotan kecil atas tapak tangan atau punggung yang
  ada pakaian.