“Liability for Student Events” ~Paul A. Samakow, The Law Offices of Paul A. Samakow, paul@samakowlaw.com

College life includes the joy, the excitement and hopefully the intellectual stimulation of attending numerous and varied events. Many of these events are sponsored by the college, and many by student organizations. Students join clubs, attend, or participate in athletic events, go to rallies, and join together in large groups at many other times and in numerous other forums.

What happens if a student is injured?

Legal Analysis and Examples

Liability for an injury requires negligence.

The first two questions after finding out how the injury occurred is (1) was there negligence? and (2) if so, who was negligent?

Here we examine potential school liability. A random act of violence in an environment with no history of violence, and where the event had appropriate security would probably result in a finding of no liability against the school. Unfortunately, on too many occasions, a school is responsible. A slip and fall injury on unrepaired and highly uneven steps would be expected to result in the injured party prevailing against the school responsible for maintaining the steps.

A school’s responsibility for unsafe property conditions is a type of “premises liability.” School officials have the responsibility to maintain a safe environment for students -the officials act in loco parentis, which is a term meaning “in the place of parents” when children are in their care at school.

Negligence is defined as the failure to exercise the care that a reasonably prudent person would exercise in like circumstances.

Negligence is the primary legal theory applied in personal injury cases because it allows injured parties to recover damages for the careless actions of another. An injured party must prove four elements: (1) duty, (2) breach of duty, (3) causation, and (4) damages.

• A college or university owes a duty to keep the campus safe; and
• There must be a breach of this duty by not keeping the campus safe; and
• There must be a showing that by breaching this duty, the college’s actions became the actual and proximate cause of the plaintiff’s injuries; and
• The college’s negligent behavior caused the plaintiff to sustain an injury that resulted in actual damages (e.g., physical harm, hospital bills, medical expenses, emotional distress, etc.).

 

All colleges and universities owe some level of care to individuals on their campuses. The exact level of care varies due to differences in state laws.

Some Students are Minors

The presence of minors on campus for classes, summer camps and other events during the academic year is common at many colleges. The legal duty owed to minors by educational institutions is and for many years has been higher than the duty owed to adults. The doctrine of in loco parentis actually applies more with respect to minors. As a result, it is well settled that educational institutions “stand in the shoes of parents” in the eyes of the law with respect to their students who are under the age of 18.

Campus incidents have increased over the years and the trend in courts is to rule that these schools owe a higher legal duty of care to their students. However, this notion is restricted to situations where the institution has some control, and the potential for dangers is foreseeable.

Lawyers will argue the meaning of “reasonable” in virtually every situation. Courts then decide what was or was not reasonable if the parties are not able to resolve the situation before trial.

The next important word in the analysis of responsibility is “foreseeability.”

Cases involving injuries often turn on whether the injury was foreseeable. Negligence on the part of the school is most apparent in cases where the school knew of a specific danger but failed to take proper precautionary measures.

Injuries can occur in a myriad of ways. If bleachers fail and those sitting suffer injuries, claims may be made against the college and perhaps the manufacturer of the bleachers or the repair organization that may have done work on the bleachers prior to the failure. If excessive, uncontrolled crowd assembly causes a “stampede” and there is an injury, this suggests a failure of security and crowd control, and injured individuals will have claims. If a fight breaks out, again, there was probably a failure of security or crowd control. Lighting at an event might be faulty and might be the cause of fall-down injuries.

There once was a universal exclusion, protecting arenas at sporting events, for injuries to spectators from balls or other objects of play flying into the stands. It is called simply The Baseball Rule. Now, claims are more and more being made upon a showing that the facility failed to put up netting or plastic barriers (think ice hockey arenas) that would prevent the objects from injuring spectators.

General Exceptions from Liability

Some important exceptions apply when it comes to a school’s liability for a student’s injuries. First, a school generally will not be liable for injuries that occur on school property outside school hours or outside school-sponsored events. If a school had no duty to supervise or if it was not sponsoring an event, likely there would be no finding of responsibility. This is particularly true if efforts were made to keep people off school property during non-school hours (fencing and locked gates, for example).

Another important exception to a school’s liability for injuries involves organized sports. If a student breaks an ankle while playing football, the legal defense of “assumption of the risk” typically prevents a successful claim by the injured party.

Potential Result

If an injury claim is successful, a student may be able to recover remedies or damages, including:

• Compensatory damages: Both economic and non-economic compensatory damages may be available. This includes reimbursements for medical expenses, hospital bills, loss of income (if employed), loss of future income, wrongful death, pain and suffering, and emotional distress.

• Punitive damages: Punitive damages may be difficult to obtain as they are often only awarded in extreme cases. However, if an institution knew or should have known their campus was not safe, was repeatedly sued or had multiple incidents occur, and continued to do nothing to make their students safer, then a court might award punitive damages.

• Other remedies: Being ordered to implement new systems and policies to make a campus safer, changing safety policies, creating a safety education program, requiring students and employees to take safety courses, and/or taking actions against perpetrators (e.g., school expels perpetrator).

Resolution

It is important to appreciate that very few cases ever reach a courtroom trial. The reason is that both parties fear worse results if the matter does go to trial. Both “sides” have an incentive to resolve the claims. Trial results could be worse than an agreed resolution.

Liability Insurance

Many colleges and universities have Registered Student Organizations (RSO’s). Liability insurance policies often cover their activities. The RSO insurance policy typically provides protection if the student organization, its officers, or members are sued as the result of an injury or loss at an event. Note that this insurance does not provide accident health coverage to the injured party. This is a separate type of insurance that may be required, particularly for sporting events.

College and student organization event coordinators should get insurance that provides coverage in at least one million dollars ($1,000,000.00) per person/per occurrence, and the insurance company should be notified prior to the event so the specific event is identified as to the date and type of event being planned. Further, the “named” insureds (the individuals who might be named as defendants) should be identified, such as, again, officers, directors, planners, members of the organization, and, specifically, the organization itself.

Another important coverage, different from “health insurance” is “accident medical coverage.” This coverage might provide up to $5,000.00, designed to help the injured person with medical bills in the event of an injury, and it is not an admission of responsibility. Colleges often have insurance to cover RSO events and are paid for by the college. RSO’s are encouraged to assure such coverage exists prior to planned events, and are also encouraged to consider obtaining additional coverage, depending upon the nature of the event.

Planning

How can an organization protect itself?

To prevent widespread injuries, both the law and institutions often require:

• The creation of and disclosure of safety and security policies; and
• The publication of annual crime statistics and keeping a crime log; and
• Providing a system that alerts students and employees about an immediate or ongoing safety concern or threat; and
• Implementing and educating, and disclosing programs for certain crimes, such as domestic violence and sexual assault.

 

At athletic events, colleges can take steps to protect fans from harm while at the same time reducing the risk of institutional liability. Colleges can:

• Print a notice on all event tickets for sports in which fans could be injured (e.g., football, baseball, hockey) indicating that the sport is an inherently dangerous one, that fans could be injured by flying balls or persons diving for them, and that the spectator assumes all risks of injury or harm. While this disclaimer will not necessarily protect the college from being sued or being found responsible, it is advisable to have the warning.
• Install a net or raise it behind the goal post, batter’s box, and along base paths to prevent the possibility of errant pucks or baseballs flying over them.
• Announce at the beginning of each game that there is a potential danger of balls flying over rails or nets.

 

Concerning general personal safety on campus, schools must use appropriate care and conduct adequate background checks when hiring teachers, coaches, and other staff. A school could be civilly liable for the sexual or other assault of a student if the school knew (or should have known under the circumstances) that the offending school employee had a history of inappropriate conduct.

Action Steps For Personal Safety

• Prepare brochures about safety and security on the campus and in the dormitories and distribute them to all guests who come on campus and stay in dormitories or other residential facilities (e.g., overnight athletic camps, academic programs, elder hostels).
• Conduct a brief and informal orientation session (or distributing a video presentation to individuals staying in dorms) about safety and security on the campus and include as any rules, regulations, or recommendations on the subject. Existing materials already provided to residential students during the academic year may suffice or be easily adaptable for this purpose.
• Make sure minors staying in dormitories are adequately supervised, day and night, and that those supervising are qualified to do so.
• Screen those on campus who work with minors using the sex offender registry and perform criminal background checks on them as allowed by law in advance of hiring them.
• Train and orient event staff, buildings and grounds and maintenance personnel on campus to engage in proactive risk management. Reward them for identifying problems and bringing forward good suggestions to make the campus a safer place.

 

Final Thoughts on Mitigating Responsibility and Damages

Here are some, but not an exclusive list, of Mr. Samakow’s experience-based thoughts (42+ years as a plaintiff’s attorney) for consideration.

1. Offer only facts. Train campus police, fire and emergency personnel employed by the University not to make admissions or express their personal opinions at the accident scene or afterwards (verbally or in writing) concerning who was at fault for the incident, how the University will or should handle it, whether there have been prior similar accidents in the past, etc. These personnel should simply do their jobs and write down the facts, and only the facts, in writing their reports.

2. Utilize the Attorney-Client Privilege. When personal injury accidents or incidents occur and there is any chance that the University may have some share of responsibility for them, involve in-house attorneys immediately and copy or direct all internal communications concerning the incident, its investigation, recommendations for subsequent remedial action or repairs to these attorneys. Do not copy non-employees of the institution without an attorney’s prior authorization. This will help protect communications from disclosure in the event of litigation.

3. The Work Product Doctrine. When a serious accident or incident occurs and as soon as litigation seems imminent, in-house counsel should either investigate it on behalf of the University or request, in writing, that another employee or agent of the institution do so, expressly stating in the written request that litigation is anticipated in the matter and requesting that the investigator direct his or her report to the institution’s attorneys. This approach can help protect the investigator’s documents and materials from disclosure in the event of subsequent litigation regarding the incident. “Work Product” cannot normally be “discovered” by the “other side.”

4. Circulation of Incident Reports. Have campus police, fire and ambulance incident reports involving personal injuries and property damage occurring on university property automatically forwarded to the institution’s risk manager. If litigation against the institution seems possible because of the incident, have the incident reports forwarded promptly by the risk manager to the school’s attorneys.

5. Kindness works. When accidents or injuries do occur on campus, be pro-active in your response. Approach the potential claimant first and, without making admissions or apologies, express concern for their well-being, check-up on them regularly to see how they are getting along and follow up with them over time. This compassionate approach can sometimes help prevent a claim from ever being filed or a claimant from hiring an attorney. If they threaten to sue or make demands, ask them what it is they want from the institution. If they tell you, inform them you will check into it and get back to them. Then check with the institution’s attorney. It is often pleasantly surprising what claimants want early on.

6. Apologies, admissions, and other problems. Unfortunately, an apology is treated in many jurisdictions as an admission of fault when it is made by a defendant or potential defendant. It can be used against the college unless it is very carefully worded. Before making statements or issuing letters of apology or admitting fault, consult with the institution’s attorney and give them advanced input into what you say. Carefully written apologies which do not admit fault might prevent claims from turning into lawsuits.

7. Pick your battles. If it appears that the institution has clear liability, try to settle it early and get a signed release of all claims. It costs less (in money, time, and negative publicity) than waiting until the claimant has retained an attorney, filed suit, and litigated for several years. The best lawsuit is always a settled lawsuit given the uncertainties of litigation.

8. Alternative Dispute Resolution – mediation or arbitration. Consider resolving disputes and claims via early mediation. Mediation is an informal settlement process facilitated by a neutral third party. It can save the institution a great deal of time and money, particularly if it is used before a lawsuit is filed. While there is no guarantee, mediation has an excellent track record of success. It often resolves a dispute in less than a day, rather than taking years of protracted litigation. The key is using mediation early, before the attorney’s fees and costs get too high.

9. Form a Risk Assessment Committee. At a minimum, the Committee should include an attorney from the University’s legal staff (to help protect the Committee’s discussions and deliberations from subsequent disclosure under the attorney-client privilege), as well as a representative of the Department of Risk Management. These individuals are generally familiar with the types of injuries and claims that have been occurring on campus. They also should be knowledgeable of the greatest areas of potential liability exposure and risk facing the institution. In addition, a representative from the University’s business operations area (preferably someone with budget authority to help fund implementation of the Committee’s recommendations), and a representative from the facilities operations or buildings and grounds area who can oversee implementation should be involved. Finally, representatives from the Student Affairs staff and individuals with authority over the campus police, fire department and athletic events should be considered as members.

The purpose of the Risk Assessment Committee is to identify areas of potential legal liability and activities posing the greatest risk of injury or property damage, on and off campus, in connection with the University’s activities and programs.

SPRING 2023 (CLT) CAMPUS LIFE TRENDS MAGAZINE