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PE and the Law


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Title: PE and the Law

PE and the Law
How did we get where we are today?
  • Not much case law in early 1900s
  • In 1940s and 1950s began to deal with safety of
    facilities and equipment
  • 1960s began Era of Growth and Change
  • 1970s was me decade and people became more
    aware of rights
  • 1980s decade of greed
  • Media, lawyers, government immunity eroded

Where we are today? Captions of Cases
  • Pool Drain Case Settled for 30.9 Million
  • Fall Off Jungle Gym 500,000 Settlement
  • Deaf Lifeguard Sues for 20 Million
  • Failure to Warn Results in 3,500,000
  • Injured Student Sues for 52 Million Awarded 13
  • Average injury award is over 1.5 Million

How can we explain this?
  • What has wrought these changes?
  • Some say society has lost sight of
    responsibility, everyone is looking for someone
    else to blame
  • Positive Outcome more attention to safe
    practices and focus on how we treat people
  • Playgrounds, called games, bomb threat
  • High standard of care
  • In loco parentis in place of the parent(s)

Legal Framework
  • Laws are like living organisms, they change and
    adapt over time
  • Kinds of law what are there?
  • Common Law Case Law
  • Precedence serves to create boundaries for future
  • Statutory Law
  • Passed by legislative bodies
  • Adopted by all forms of government
  • Constitutional Law embodied by United States

United States Constitution
  • Amendment One
  • Freedom of Religion, of Speech, and of the Press
  • Students rights do not stop at the doors of the
  • Congress shall make no law respecting an
    establishment of religion or prohibiting the free
    exercise thereof or abridging the freedom of
    speech, or of the press or the right of the
    people peaceably to assemble, and to petition the
    government for a redress of grievances.

United States Constitution
  • Amendment Four
  • Security from Unwarrantable Search and Seizure
  • Bodily fluids Drug Testing
  • The right of the people to be secure in their
    persons, houses, papers, and effects, against
    unreasonable searchers and seizures, shall not be
    violated, and no warrants shall issue, but upon
    probable cause, supported by Oath, or
    affirmation, and particularly describing the
    place to be searched, and the persons or things
    to be seized.

United States Constitution
  • Amendment Ten
  • Powers Reserved to States or People
  • Education becomes right of state
  • The powers not delegated to the United States by
    the Constitution, nor prohibited by it to the
    States, are reserved to the states respectively,
    or to the people.
  • (Note The first Ten Amendments, popularly known
    as the Bill of Rights, were proposed by Congress,
    September 25, 1789, and were ratified by the last
    necessary State December 15, 1791)

Law 101
  • Types of courts
  • U.S. Supreme Court
  • Federal Courts of Appeal
  • Federal District Courts
  • State Courts
  • Court of Claims
  • Court of Military Appeals
  • Court of International Trade

Law 101
  • Types of cases
  • Civil case (tort case) - A tort is a civil action
    brought by one party against another to redress
    some wrong committed by the party being sued (the
    defendant) against the party suing (the
  • Burden of proof is not as high, often monetary
  • Torts go through the state courts
  • Criminal case - A crime is punishable by loss of
    liberty or life and is brought by the government
    against a defendant for violation of that
    government's laws.
  • Various levels of severity (drug, violent, white
    color, etc)
  • Recall the OJ case?

Law 101
  • Civil Law a tort (legal action) can be brought
    for acts of omission (failure to act) or
    commission (acting improperly)
  • Negligence failure to act as a reasonably
    prudent person would under the same circumstances
  • Nonfeasance failure to do what is required
  • Misfeasance doing something incorrectly
  • Malfeasance doing something illegal
  • Legal terms for OA

Law 101
  • Four questions courts use to determine negligence
  • Duty did one person owe a duty to another?
  • Breach did that person failure to exercise that
  • Harm was a person actually injured?
  • Cause was the failure to exercise due care the
    direct or proximate cause of the injury?

  • Definition - failure to act with the prudence
    that a reasonable person would exercise under the
    same circumstances
  • From

Defenses for Negligence
  • One of the elements missing
  • No duty, no breach of duty, cause could not be
    established, no injury, just accident
  • Contributory Negligence
  • Comparative Negligence
  • Assumption of Risk
  • Act of God
  • Immunity

Contributory Negligence
  • Was the plaintiff at all at fault, or contributed
    to accident?
  • The older the student, the easier to show
    contributory negligence, should have appreciated
    the danger of situation

Comparative Negligence
  • Court will divide responsibility among the
    parties involved
  • Assessment of negligence on either side
  • EXAMPLE If 100,00 and plaintiff is 40 at
    fault, then will get 60,000
  • Arnold vs. Riddell regarding football helmet
  • C4/C5 spinal fracture after helmet to helmet
    collision. Shock attenuation system was

Assumption of Risk
  • Inherent and Unfortunate VS Unacceptable
  • Persons have a duty to use reasonable care to
    avoid injury to others and may be held liable if
    their careless conduct injures
  • Yet, what was the role of the injured and the
    nature of sport?
  • Regents of the University of CA vs. Roettgen
  • Student killed on a rock climbing trip. The
    Regents was determined to have acted properly

Act of God
  • If lightening strikes without any warning
  • Beyond the control of anybody
  • Unpredictable, uncontrollable acts of nature
  • Could the defense of an act of God be used for a
    coach who continued to practice in a
  • Football recess story
  • Good Samaritan Laws
  • Giving first aid (dont do things not trained
  • Different laws among states

  • Compensatory damages are compensation for actual
    losses (e.g., medical bills, lost wages, court
    costs) while punitive damages are monetary awards
    to punish the defendants (i.e., persons being
    sued) for wrongful actions and to deter such
    actions in the future

Preventing Negligence 1) Supervision
  • Most basic responsibility of teachers is to
    properly supervise students. That means number
    one, being there. Number two, attending to your
    students and not for example, creating a practice
    plan for your team
  • What about if an office staff worker comes to the
    gym during a 2nd grade lesson on body parts and
    tells you there is an urgent call in the office?
  • NEVER EVER leave your students unsupervised, you
    wont have a leg to stand on.

1) Supervision
  • Supervision is more than just being present
  • Monitor and keep activities within the skill
    level of individual students (differentiated
  • Keep students from participating in unsafe
  • Enforce class and safety rules
  • Keep records and be aware of student health
    status (particularly IEPs)
  • Provide spotting and other specific supervision
    in activities of elevate risk such as gymnastics
    and wrestling

1) SupervisionMore suggestions
  • More dangerous an activity, the closer specific
    supervision should be
  • Very close supervision is needed when athletes
    are performing a skill for the first time
  • Learn to recognize and prevent excessive
  • If a student is being bullied repeatedly by
    another student, it is your responsibility to
    intervene. If all of a sudden the bullied
    student snaps, and punches the other
    unconscious, you may be partially (contributory)
    liable. The case would rely on documentation and
    eye witness accounts.
  • Establish stop signals

1) Supervision
  • Supervision varies with
  • Age and maturity
  • Amount of risk
  • Skill level
  • Preparation of students (1st day, prior
  • What about the locker room?
  • Privacy v. supervision?
  • Case from text

1) Supervision
  • General all areas and activities related to the
    game or activity
  • I had an administrator explain my areas of
    supervision as whatever my eyes see and do not
  • Specific the actual game or activity

1) Supervision
  • Supervision also means allowing others to see you
    act as a reasonable and prudent professional
  • Advise against, especially for male teachers,
    being alone with a student (office, equipment
    room, etc). In such instances, it is your word
    against yours. Either way you will lose, if not
    legally, personally.
  • At the minimum, leave the door open
  • Totally fictitious claims have been brought
    against teachers due to attractions, grades, and

1) Supervision
  • Neal vs. Fayette County Board of Education
  • 5th Grade PE Basketball Unit
  • Case Partially amputated finger while dunking
    b-ball during class. Sued on basis that 2
    students previously were injured, claiming hoop
    was defective and dangerous, as well as not
    properly supervised
  • Ruling Court ruled for the school. The two
    previous cases did not prove hoop was defective
    and also, the teachers warned students not to

Preventing Negligence 2) Instruction
  • Duty to teach appropriate techniques, properly,
    and include safety rules. Always remember the
    mantra of reasonable and prudent
  • Failure to Instruct - relates to
  • Skills and Techniques
  • Methodology
  • Planning, lessons, rules, facilities, equipment
  • Duty to Warn (if applicable)
  • Knowledge of risks and benefits of activity

Understanding of Safety Concerns
2) Instruction Additional Suggestions
  • Progression of skill development
  • Levels 1-5
  • Correct the incorrect
  • Dont ignore, rotate giving feedback
  • If a reasonable and prudent PE teacher would have
    corrected the mistake, you will likely lose the
  • Risk of activity should match the skill level and
    training of instructor
  • Dont get in over your head
  • Use proper and safe equipment including safety
    devices (masks, helmets, etc)
  • Sufficient space
  • Dont force a student to perform an activity in
    which they are clearly uncomfortable (adventure?)
  • Dont use exercise as a punishment

2) Instruction Additional Suggestions
  • Match and Mismatch
  • Pairing of individuals or groups without regard
  • Age
  • Height
  • Weight
  • Skill
  • Maturity
  • Mental State/Disability
  • Experience
  • Counting off may not be appropriate in some
  • Example steal the bacon

2) Instruction Additional Suggestions
  • Match/Mismatch A similar case was heard by a
    federal district court in Pennsylvania. In Cohen
    v. School District (1992), a special education
    student with learning disabilities, behavior
    problems, and known violent tendencies was
    mainstreamed without adequate supervision.
    Without provocation, the student attacked and
    injured a peer in his classroom. The parents of
    the injured student sued the school maintaining
    that the injured students rights had been
    violated. The court held that placing a student
    with behavior problems in the general education
    setting is not unconstitutional per se. That is,
    it is not a violation of law to place a
    potentially violent student in a general
    education classroom. The court stated such a
    placement, however, may result in school
    officials being held liable if the officials knew
    that a student with disabilities was violent, and
    they placed the student in the general education
    classroom without adequate supervision.

Preventing Negligence3) Equipment Facilities
  • Plan for periodic inspections and keep the
  • Report deficiencies (broken lock, warped floor,
  • Traceable manner such as email
  • Advise students of dangers (wet floor)
  • Lock facilities when not in use
  • If a student gets into an empty gym and injures
    themselves, youre at fault

3) Equipment Facilities
  • Keep up to date on current practices regarding
    facilities and equipment
  • Soccer goal example
  • http//
  • Swimming pools
  • Use lifeguards to decrease liability
  • Wet grass outside
  • Error on the side of caution

3) Equipment Facilities
  • Attractive nuisance dangerous situation that
    attracts the attention of youth
  • Applicable to under 14 years old
  • Why most playgrounds have a fence around them,
    why equipment is locked up
  • Facilities Checklist
  • Tom Bowler
  • Create and post rules/guidelines

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Preventing Negligence3) Equipment Facilities
  • Everett vs. Bucky Warren Hockey helmets
  • Ordered dangerous defective equipment
  • When request students to purchase equipment and
    they do not should not allow them to play.
  • DUTY goes beyond just requesting . . . Must
    ensure they follow through . . .

  • Injuries WILL OCCUR on your watch, how can your
    school district prepare for them and prevent
    further injury once one has occurred
  • 1)
  • 2)

  • Preparation for an injury
  • Create a risk management plan
  • Only addition would be the addition of a
    communication device such as a walkie-talkie or a
    cell phone (battery)
  • Sample plan
  • Instructions for creating a risk management plan

If an Injury Occurs
  • Summon help
  • Provide first aid
  • Two common errors is doing too little or too much
  • Make sure CPR and First Aid credentials are up to
  • Its a good idea to have one person on staff who
    is a CPR and First Aid instructor
  • Complete an injury report - example
  • Do immediately before the details become fuzzy

Sample Injuries from PE
  • Act as reasonable prudent professional
  • Lack of supervision (Ithaca wall partition)
  • Unanticipated performances (diss long jump)
  • Equipment/facilities (pamper pole trapeze)
  • Bee sting (boys club)
  • Age appropriate activities (3rd grade BB)
  • W. Hartford Elem (VB standards, equipment on
  • Trumbull (crash mat under cargo net)
  • Chenango Forks (arrhythmia while swimming)
  • SSW J. Rose (attendance) keep records
  • Other cases youve heard of?

Sample Injuries from PE
  • Gym Teacher Sued by Injured Weightlifter
  • A former student whose eye was injured by a
    broken exercise band has sued his gym teacher,
    reports the Richmond Register.  The incident
    occurred during a high-school weightlifting class
    in 2007. 
  • According to the filing, the plaintiff claims
    that the teacher failed to supervise the student
    properly, or to keep the weightlifting equipment
    reasonably safe. The Richmond Register reported
    that the student was blinded in the left eye.
  • Dodgeball NYS example

Sample Injuries from PE
  • By Marc Davis, The Virginian-Pilot
  • TWO YEARS AGO, a 12-year-old girl was hit in the
    mouth with a baseball bat during gym class at
    Landstown Middle School in Virginia Beach.
  • It was an accident. The girl was the catcher, but
    the teacher had not given her a mask. As the girl
    reached for a ball, the batter swung. The bat
    caught the catcher flush in the teeth.
  • One tooth was knocked out. Six others were
    broken. After much dental work, the girl now has
    a bridge on her top teeth and four crowns below.
    Her parents, who had no health insurance, paid
    8,587 to repair the damage.
  • http//

Additional Cases
  • Wrestling
  • Football
  • Golf

Liability Insurance
  • May be included through the school district, the
    teachers union, or a national organization such
    as the NEA or AFT
  • Often a collaboration between the districts
    teachers union and the national organization
  • Private insurance
  • http//
  • Examples 1, 2, 3

Liability Insurance
  • Non-public school teachers (catholic schools,
    etc) often do NOT have employer or union provided
    liability insurance.
  • Administrators OFTEN carry additional insurance
    (more often cited in lawsuits)
  • As a student teacher, you are insured by the CSU

Teacher Protection Act
  • http//

Sexual Harassment
  • Student to student sexual harassment
  • CT Commissioners Report plaintiff would have
    to establish that the school board had actual
    knowledge of the sexual harassment and was
    deliberately indifferent to the sexual
  • Result of 1999 Supreme Court Decision
  • Sexual Harassment Handout for Students
  • From State of CT Board of Ed
  • Discrimination Free Schools Policy
  • CT Commissioner of Ed.

Negligence Coaching
  • CT Coaching Competencies
  • Extensive
  • Required training
  • 5 year renewable license
  • NASPE Coachs Code of Conduct
  • Good to review whether coaching or the AD with
    all coaches
  • These guidelines are published by the state and
    your national organization (AAHPERD). Failure to
    adhere to these guidelines can be used against
    you. Therefore, it behooves you to follow and
    familiarize yourself with them.

Duty to Warn - Coaches
  • DO YOU
  • Warn about dangers of improper techniques?
  • Tell athletes specifically about types of
    injuries they could suffer from improper
  • Warn parents about injuries and consequences of
    playing sport?
  • Illustrate these warning with charts or provide
    written warnings?

What are the risks in your sport?
  • Nature of the Game
  • Rules of the Game
  • Playing Environment
  • Playing Equipment
  • Develop a list of risks in a sport
  • List of HS/MS Activities

Drafting a Written Warning
  • Use list of risks to draft out a written
    statement to distribute among athletes
  • Needs to be adapted so information is clear for
    the age and experience of athletes
  • Be concise and honest
  • Review and revise with another coach

HOW will you give the warning effectively?
  • Do not make assumption that athletes already know
  • Use visual and verbal explanations
  • See next slide

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Using Waivers
  • Add a waiver at the end of the written statement
  • Similar to Informed Consent or Assumption of
  • Signature indicates knowledge, understanding, and
    appreciation of risks
  • Willingness to waive legal rights to hold you
    legally responsible in event of injury

Why should you NOT rely on a waiver for legal
  • A minors rights cannot be waived.
  • Until a minor reaches legal age, s/he is not
    mature enough to fully understand terms
  • Why use waivers then?
  • Valid agreement, you now have an assumption of
  • Yet a signed waiver has been contested in court
  • Acting appropriately in the first place and
    accepting responsibility for warning athletes and
    parents about risks has more protection than
    trying to claim innocence later

What needs to be included in a waiver?
  • Who is protected by agreement
  • Need to use language that can be broadly
  • Avoid statements that are fraudulent
  • Make sure to use proper title
  • Should be a separate sheet and not on a
    membership form
  • Font should be at least 10 font
  • Language should be clear and bold lettering and a
    caution statement, read before signing
  • Signatures should be near the language with a
    statement assuring that you have read it

  • Legal guidelines from the text
  • Better to be safe than sorry
  • Note on standing in a doorway

  • Research 2 legal cases online, one related to PE,
    the other to coaching
  • Post the website link online in Vista under the
    legal cases blog (in assignment tab) including
    your name
  • Bring a PRINTOUT summary of both cases next class
    to present/discuss and hand in
  • Include the web address