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Protecting Against Negligence
By Sandra Crosser, Ph.D.

While riding his trike during outdoor play time Kevin veered from the sidewalk. Thick rope had been strung between poles to identify the perimeter of the play area. Part of the rope struck Kevin's neck, leaving him gasping for air. A severe rope burn was evident on his neck. Kevin's parents accused the teacher and the center of negligence.

What is Negligence?
Negligence is a tort, which is defined as a civil wrong against a person or a person's property. Since negligence is a civil wrong, rather than a criminal offense, the punishment typically involves a fine rather than incarceration.

Defending Against Negligence
There are three general defenses against charges of negligence: Act of God, Sudden Emergency, and Contributory Negligence.

1.       The event was an act of God. Natural disasters such as earthquakes, fires, or tornadoes might be considered acts of God. Disasters that could not be foreseen such as bombings or airplane crashes might also be considered acts of God.

 

2.       The event was part of a Sudden Emergency. A teacher sees Jenny start to fall from the top of the slide and rushes to catch her. In the rescue process the teacher falls on Jenny and causes the child to break her leg. In an attempt to assist in a sudden emergency the teacher actually inflicts harm.

 

3.       The child has contributed to his own injury. This is an instance of Contributory Negligence. This defense is more common in cases involving older children and adolescents than with preschoolers because preschoolers require greater care due to their ages. If an adolescent injures his wrist during a ball game but does not inform the coach, the student may make the injury more severe by continuing to play. The student, therefore, contributed to his own injury.

The general standard used by the courts for determining negligence involves two terms: reasonable and prudent. What would a reasonable, prudent person do in similar circumstances? The standard is not perfection, but simple common sense.

What is Reasonable, Prudent Behavior?
Common sense would dictate that teachers personally perform assigned duties. When assigned to supervise lunch, restroom, playground, or other typical duties the teacher must be physically present. That means that children must be within view and must be supervised. The teacher must intervene to stop any behavior that could be foreseen to cause injury to a child or property. The implication is that the teacher may not supervise outdoor play by watching children through a window, while reading a book, or otherwise preoccupied. And no child should ever be isolated out of the view of an adult.

The ages and abilities of the children are both factors courts consider in cases of negligence. The younger the child, the more care required. Since preschoolers are inexperienced, adults must supervise closely and the activities that are provided for young children must be appropriate to their ages and abilities to ensure safety. Preschoolers then must not be left alone even for short periods of time.

Equipment must be safe and in good repair. Materials and equipment should be regularly inspected for sharp edges, rust, and other potential hazards. Facilities should also be inspected for the existence of any attractive nuisance. An attractive nuisance is anything a child might be drawn to explore which has the potential for harm. Paper cutters and coffee pots are prime examples of attractive nuisances commonly found in schools and child care programs.

In cases of accusations of negligence, courts have looked at whether or not there were established rules and whether or not those rules were enforced. The more dangerous the activity, the more need there is for rule setting and enforcement. For example, if a woodworking center is part of the preschool setting, rules should be established for use of safety goggles, tools, and other equipment, and those rules should be regularly enforced.

Written safety policies for field trips, adequate supervision, storage of cleaning supplies, and emergency drill procedures are a must. In order to protect against charges of negligence the wise administrator will regularly review safety policies and procedures so all child care employees are knowledgeable.

Conclusion
Courts have held schools to a high, but not unreasonable standard of care. It is the duty of the school to provide a safe environment for children. The best protection against charges of negligence is vigilance. Be aware, anticipate what could happen, and play it safe.

Sandra Crosser, Ph.D., is an associate professor at Ohio Northern University in Ada, Ohio.