Each state, and the federal government, has enacted its own laws imposing specific procedures which must be followed precisely before a claim can even be considered in court. This article looks at the Massachusetts law.
A High School teacher gave his class a football and instructed the class to go outside. Two teachers led the students to the school’s football field.
As the facts are stated in the case, the students were not directed or told to play tackle football, but they were allowed to do so.
During the game one student was tackled from behind, causing serious injuries including a broken leg.
Issue: Is the School Liable?
Under the Massachusetts Tort Claims Act, the state and public schools are subject to liability under certain circumstances. But, certain exceptions remove liability. Immunity from a law suit is allowed:
“for all harmful consequences arising from its failure to act to prevent the violent or tortious conduct of a third person, unless it ‘originally caused’ the ‘condition or situation’ that resulted in the harmful consequence.”
Massachusetts Tort Claims Act interpreted by Kent v. Commonwealth (2002).
The problem in this case is that the “originally caused” words have been interpreted to mean an affirmative act by a public employee is required in order for liability to attach. The court in the football injury case decided that simply allowing students to play tackle football, or failing to stop them from playing the game, does not qualify as an affirmative act under the law. So, dismissal of the case by the trial court was upheld on appeal.
Are All Cases Dismissed?
The court distinguished this case from another in which an elementary school student sustained serious injuries during recess when he was pushed and fell, striking his head on the sharp corner of a concrete and brick bench-wall. In that case, a school principal actually led the first-graders out to the concrete courtyard when there were alternative play areas.
The court there explained that the principal’s affirmative act of ordering the students to take recess in the dangerous area was the original, foreseeable cause of the situation that led to the injury.
Conclusion
Deciding whether a case can go forward based on an affirmative action is purely a creature of the Tort Claims statute. The classic legal definition of negligence holds one liable for acting or failing to act where a reasonable person would have done so to prevent foreseeable harm. But this is one of many barriers imposed in a law passed by lawmakers who grudgingly decided to allow lawsuits against governmental entities, but only under the rules they write and on the playing field they design.
Photo credit: Back to School by Nick Page on Flickr. License.
The cases reviewed in this blog are:
Talbot v. Town of Hudson, Unpublished Opinion of Appeals Court of Massachusetts, 13-P-2012 (Dec. 10, 2014). Football injury at recess.
Gennari v. Reading Public Schools, 77 Mass.AppCt. 762 (2010). Cement elementary school playground.
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My special needs daughter has been neglected by her school for the last several years now. She is a nonverbal child that has been without her speech services for going on two years now. They have not tried to make up the hours that she has been without. They lost her communication device for the full year of 2021. She’s receiving very minimal hours for her special education services. She hasn’t made hardly any progress. And they are duplicating her IEP‘s and not changing anything on them. I rejected her IEP in full as I’m looking to get her placed in an out of school district add a special school for children with autism. Can I sue the school district for negligence?
How about if the teacher dismissed your child to a unauthorized person and then made comments and accusations about your child trying to hurt themselves because he had an anxiety attack in school and did not inform the parent of their whereabouts both times and when you asked the teacher where you child was they got mad and rude?
I’m a personal injury attorney and the blog post focuses on seeking recovery for accidents and injuries sustained in the course of school activities. Your issue would be best addressed by conversations with the guidance counsellor, principal or vice principal, social services provider or others responsible for the education and well being of your child. Please try this, and if there’s no resolution, perhaps contact a member or members of the school board. I do wish you the best.