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EVERYDAY LAW: Exercising reasonable care

Cecil McCarthy

EVERYDAY LAW: Exercising reasonable care

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In last week’s article, I mentioned that there is potential for liability where a principal sends home a number of children prior to the close of the school day.
The fact that children are being punished for a violation of the school rules will not of itself absolve the school from liability in an appropriate case.
Another example of what can occur is illustrated by the case of Jerkins Anderson (2007), a decision of the Supreme Court of New Jersey.
In that case a nine-year-old boy was dismissed from school around 1:30 p.m. on an early dismissal day. He walked off the school grounds without an adult and was struck by a car a few blocks away from the school later that afternoon. As a result of the accident, he was paralyzed from the neck down. He and his family instituted legal proceedings, alleging that the school district and principal breached their duty of reasonable supervision with respect to the child’s dismissal from school.
At the first hearing it was held that a duty of care did not apply to the accident that occurred hours after dismissal (3:50 p.m.) and blocks away from his school. The Appellate Division reversed the decision and its judgement was affirmed by the Supreme Court, both holding that schools have a duty of reasonable care to supervise children during dismissal. The court then remitted the case for trial to determine whether the duty was breached on the facts of the case.
The court found that the duty with respect to supervision on dismissal was defined by standard of reasonableness.
The following extract from Chief Justice Zazzali’s opinion sets out the elements of the school’s duty of care in the circumstances of the case.
“In light of that reasonableness standard, we now consider the specific elements of the duty to exercise reasonable care in a manner that both delineates the school district’s responsibilities and accounts for others’ responsibilities to children, particularly the responsibilities owed by parents to their children.
“There are, simply put, three elements to the school’s duty of care in this context: (1) the school must adopt a reasonable policy concerning dismissal and the manner in which students of different ages will be dismissed; (2) the school must provide adequate notice of the policy to all parents or guardians; and (3) the school must effectively implement that policy and adhere to parents’ reasonable requests regarding dismissal.
“First, satisfaction of that duty requires school districts to adopt a policy governing dismissal practices. That policy should include, at a minimum, sufficient detail about the adult supervision and patrols present during dismissal, the assigned duties and locations of those adults at dismissal, and procedures for early dismissal, and procedures for early dismissal days. We leave it to the sound discretion of educators to formulate a specific policy that satisfies the school district’s responsibilities and is tailored to the district’s unique circumstances.
“Second, in order for the school to implement its responsibilities, school districts must notify parents of the adopted dismissal policy, specifically informing parents of what to expect from the school district regarding the school’s day end, the school calendar and typical dismissal protocol. The school district, therefore, must provide notice reasonably calculated to apprise parents of what they can and should expect the school will do when releasing children, and the time of dismissal for each day of the school year. The school must inform parents when supervision will be provided by the school district at school’s end and what supervised after-school services, if any, will be available to students at the school facilities after formal dismissal . . . .
“Third, the duty requires faithful adherence to a reasonable, published dismissal practice, including compliance with a parent’s or guardian’s instructions about releasing a child to walk home alone. If instructed not to permit a child to walk home alone, a district must retain supervision over the child while the student remains on school property awaiting the arrival of the appropriate escort or designated transportation. The district must have a plan for emergencies when an unforeseen event prevents a parent or designated escort from arriving for the child at dismissal, the child will be provided some form of temporary, supervised shelter.
“The school district’s duty is thus discharged through the adoption of, notice to parents or guardians of, and compliance with a reasonable dismissal policy. As a result, the district can plan for and execute the necessary steps to satisfy a duty of reasonable care in the dismissal of students at the closure of each school day.”
The above decision is not binding on our courts but it would be unwise to ignore the counsel given and its applicability in an appropriate case.
• Cecil McCarthy is a Queen’s Counsel.