Group 6: Jason Bloom, Bernadette Harris, Rebecca Raulerson

CAUTION!
 American Public School
Law may cause
drowsiness!
 Drowsiness, or feeling
abnormally sleepy, is a
common side effect of
American Public School Law.
 Drowsiness can affect your
ability to study, comprehend
legalese, or do other things
that require alertness.

Tools for
Success
 Key Terms - Tort

WHAT IT IS WHAT IT IS NOT

TORT
 A wrongful act, not
including a breach of
contract or trust, that
results in injury to
another's person,
property, reputation,
or the like, and for
which the injured
party is entitled to
compensation.
 Key Terms - Abrogate

WHAT IT IS WHAT IT IS NOT

ABROGATE

 to put aside; put an

end to, to repeal or to
abolish.
 Key Terms – Ministerial
Act
WHAT IT IS WHAT IT IS NOT

MINISTERIAL ACT

 Duty imposed by law

involving obedience
to instructions.
 Key Terms – Discretionary
Act
WHAT IT IS WHAT IT IS NOT

DISCRETIONARY ACT
 An act that requires
one to exercise
judgment or to make
a decision.
EXAMPLE FROM
CHAPTER 4
 School boards have
discretionary power to
employ a certain
 Sovereign Immunity

IN THE DARK AGES MODERN TIMES

“The King can do no

wrong”
 Sovereign Immunity

WHAT THE BOOK SAYS WHAT IT MEANS

“School districts, as Basically, school

agencies of the state, districts are
have historically been considered a
immune from tort government agency.
liability. As a general Therefore, school
rule, common law districts are immune
asserts that to liability unless the
government is court abolishes or
inherently immune reverses immunity.
unless the legislature
abrogates the
Example of Abrogation of Sovereign Immunity
Molitor v. Kaneland
Supreme Court of Illinois, 1959

Facts:
 Thomas Molitor was injured when his
bus driver ran off the road and hit a
culvert . As a result of the driver’s
negligence, the bus exploded.
Example of Abrogation of Sovereign Immunity
Molitor v. Kaneland
Supreme Court of Illinois, 1959

Procedural History:
 In 1898, the Supreme Court of Illinois
extended the sovereign immunity to
school districts through Kinnare v. City of
Chicago.
 A worker fell off a roof of a school building
and died because the district did not
provide proper scaffolding.
 However, the court decided that the state
was not liable to compensate acts of
negligence.
Example of Abrogation of Sovereign Immunity
Molitor v. Kaneland
Supreme Court of Illinois, 1959

ISSUES:
 Should a school district be immune from
liability for the personal injury inflicted on
a student while being transported by a
district owned and operated bus?

HOLDINGS:

YES!
Example of Abrogation of Sovereign Immunity
Molitor v. Kaneland
Supreme Court of Illinois, 1959

RATIONALE:
 The rule of school immunity is unjust and
has no rightful place in today’s society.

DISPOSITION: School immunity was

abolished.

 However, it was restored in 1965 through

the Governmental Employees Tort
Immunity Act, which protected
government employees from liability
 School Board is Entitled to Governmental Immunity
Yanero v. Davis
Supreme Court of Kentucky, 2001

Facts:
 Ryan Yanero was hit in the head with a baseball
during batting practice. He was not wearing a
helmet.
 The district had a written policy that required
helmets.
 Parents sued the Jefferson County Board of
Education and the athletic director, Allen Davis.
 Parents claimed negligence because Ryan was
not required to wear a helmet and no one sought
medical attention after he was stuck by the
baseball.
 As a side note, Ryan had been playing baseball
 School Board is Entitled to Governmental Immunity
Yanero v. Davis
Supreme Court of Kentucky, 2001

Procedural History:
Sovereign Immunity:
 Common law of England embraced in the
United States to protect states from tort
liability unless the state has given consent
or waived immunity.
Governmental Immunity:
 Stems from Sovereign Immunity.
Contends that courts should not pass
judgment on policy decisions made by
members of coordinate branches.
 School Board is Entitled to Governmental Immunity
Yanero v. Davis
Supreme Court of Kentucky, 2001

Official Immunity:
 Protects a government official’s
discretionary acts only if his/her acts are
not wrongful.
Protects from negligence if:
Exercised judgment
In good faith
Fell within the scope of the employee’s
authority.
Here is where is gets tricky:
 School Board is Entitled to Governmental Immunity
Yanero v. Davis
Supreme Court of Kentucky, 2001

Procedural History:
 Rose v. The Council for Better Education,
Inc. established a precedent that a school
board is an agency of the state
government.
 School Board is Entitled to Governmental Immunity
Yanero v. Davis
Supreme Court of Kentucky, 2001

ISSUES:
Is the County Board of Education liable to
tort?

HOLDINGS:

NO!
 School Board is Entitled to Governmental Immunity
Yanero v. Davis
Supreme Court of Kentucky, 2001

RATIONALE: Jefferson County Board of

Education was performing a governmental
function and entitled to protection of
governmental immunity. Therefore they
could not be held liable for the
establishment or lack thereof requiring
students to wear helmets.
 School Board is Entitled to Governmental Immunity
Yanero v. Davis
Supreme Court of Kentucky, 2001

DISPOSITION:

 The Supreme Court of Kentucky affirmed

the lower Court’s decision that Jefferson
County School Board was not liable.
 However, they reversed the decision
concerning Becker and Davis and
remanded it for further discussion in the
lower court.
 School Board is Entitled to Governmental Immunity
Yanero v. Davis
Supreme Court of Kentucky, 2001

WHY?
 As coaches, they were performing a
ministerial act and were found negligent
for not enforcing the district policy, which
required students to wear helmets.
Davis should move to Virginia

Lentz v. Morris
Supreme Court of Virginia, 1988
Facts:
A teacher let some high school students
play tackle football without protective
gear. A student sustained injuries when he
was tackled “with great force and
violence.”
Davis should move to Virginia

Lentz v. Morris
Supreme Court of Virginia, 1988
Procedural History:
 The court applied the Messina Test
(Messina v. Burden), which includes the
following factors:
Nature of the function the employee performs
Extent of governmental entity’s interest and
involvement in the function.
Degree of control and direction exercised over
the employee.
Did the alleged wrongful act involve judgment
 He passed the test!

1. Nature of the function  Employee was a teacher

the employee performs performing a vitally
2. Extent of governmental important function.
entity’s interest and  The school board as a
involvement in the government agency has
function. interest and involvement
3. Degree of control and over the employee.
direction exercised over  The school’s principal
the employee. maintains control and
4. Did the alleged wrongful direction of the teacher.
act involve judgment  The decision of what
and discretion? students should wear
involves judgement and
discretion by the
teacher.
 In other words…
The teacher was entitled to
immunity and was not liable
for the injuries the student
sustained when he was
tackled “with great force and
violence.”
 Abrogation of Immunity

General Rules of
Abrogation
2. The state must consent
3. Except when the state declines consent and are
subject to liability.
4. When a state is subject to tort liability, the state
is immune for acts and omissions constituting
(a) the exercise of a judicial or legislative
function or (b) or the exercise of an
administrative function involving determination
of a governmental policy.
5. Consent to suit and repudiation of general tort
 Abrogation of Immunity

General Rules of Abrogation (in

English)
2. The state must consent
3. Declining consent does not absolve immunity if
the state is liable.
4. Even if the state is liable, the state is immune
regarding discretionary acts (judicial, legislative
and administrative functions to determine
policy)
5. If a state consents to suit, this does not
establish liability for something that does not
cause harm or injury.
 Discretionary Functions

Restatement (Second) of Torts

2. How important to the public is it that this
function be performed?
3. What is the level of the government?
4. Is this a function peculiarly sensitive to the
imposition of liability?
5. How much financial responsibility will fall on
the officer?
6. Is this action certain or substantially certain to
impose damage on some people?
7. Is it a loss that can be easily borne by the
injured party?
8. Could he have insured against it?
 Many states have
waived immunity
if the district
purchases
liability
insurance;
If no insurance is
purchased, then
immunity
 School districts have the authority to purchase
insurance that may have the same effect as a
waiver of immunity, to the extent of the
insurance proceeds.
 In this case, the state does not imply a waiver,
since their intent is clear by its authorization of
tax levees to pay for insurance premiums.
 This is consistent with legislative theory that a
claim against a school district should be paid in
the same manner as a claim against a private
party.
 Student was thrown from the back of a
pickup truck delivering wrestling mats
from one school to another. Although the
school had an insurance policy, it did not
cover this claim, so the school motioned
for a summary judgment (a request by the
defendant that asserts that the plaintiff
has not raised a “genuine issue” that
renders going to trial) for sovereign
immunity. The court ruled in favor of the
district.
 Many states, when
reluctant to
abolish their
sovereign
immunity, will
settle tort actions
based on the
activity that was
being performed
by the school or
district when an
 When districts settle torts, they operate in a
dual capacity: performing their normal
functions that are strictly “governmental”
(governing their schools), as well as taking on
a proprietary function similar to a private
corporation. A proprietary function is defined
as the capacity of a municipality to enter into
business ventures, or perform discretionary
acts that are in the best interest of its
citizens)
 Not normally required by law
 These are functions not in the normal
scope of public school operation
 While courts usually hold schools liable for
events where admission is charged, they
do not usually apply the same standard to
DISTRICTS! (ie: spectator is injured at a
school athletic event, courts do not
impose liability on the district, even
though fee was charged) Reasoning? Just
because a fee was charged does not mean
it was a for-profit transaction.
 Sometimes districts must “wrestle” with
distinguishing between what is a proprietary and
what is a governmental function.
 The test: whether the act is for the common good
of all, with no element of monetary profit…so…
if the activity is educational and for the
common good, then any profit made is incidental
and the activity is defined as governmental (part
of the governmental function of the school).
 Of course not!
 Some courts assert that because
schools have no legitimate function
other than to govern themselves,
they cannot legally perform
proprietary functions.
 Licensee: one who
uses a premises by
permission or
operation of law,
but without
expressed invitation
(but NOT a
trespasser)
 Invitee: one who
enters premises by
expressed or
implied invitation of
owner
 Districts owe a
greater degree of
 A property owner does
not owe a particular
duty to a licensee,
unless they commit
willful disregard for
their safety.
 Invitee TEST for
LIABILITY:
1. Either a public invitee or
business visitor
2. Public invitee has been
invited to enter or
remain on the land for an
event that is open to
public
3. Business visitor is invited
to enter or remain on
land for business
dealings with the owner.
 Plaintiff,
Flora Tanari was knocked
down by students engaged in
horseplay at a high school football
game, and was injured. The courts
decided she was a licensee and the
district performed no willful
misconduct, although she alleged
negligence in supervision. Her claim
was denied.
 It’s time for…
THE WEAKEST LINK!
 Nuisance

 “ the existence or
creation of a
dangerous, unsafe,
or offensive
condition which is
likely to cause
injury, harm , or
inconveniences to
others.”
 A dangerous
condition must be
created by the
school district for
nuisance to exist.
 Kansas School Board
(p. 653)
 Plaintiff
argued that snow that was
shoveled into school parking lot
(government immunity) was a
nuisance.
 “Toestablish a claim of intentional
nuisance against a governmental
agency (school building) a plaintiff
must show that there is a condition
which is a nuisance and that agency
intended to create that condition”.
 Because the snow was moved (action)
 Section1983 is an outlet in obtaining
damages and equitable relief against
state and local agencies and officials
who violate the constitutional rights of
a person.

 Majorpurpose is to “compensate
persons for injuries that are caused by
deprivation of constitutional rights.”
 Under Pembaur v. Cincinnati in 1986,
the Supreme Court held that a
school board cannot be held liable
unless the board has denied the
plaintiff his or her rights.

 Ifa school/team does not write the

IEP correctly as mandated by IDEA,
school is held liable for the
inadequacies within the IEP.
 Individual Liability

 Individuals in the school system are

held liable when they have
demonstrated “lack of good faith”
and violated someone’s
constitutional rights.

 Ifa teacher breaks an IEP without

permission from the team and
parents, the individual is liable for
the changes made – positive or
 Wood V. Strickland

 Plaintiffs spiked punch during school

social event and admitted to crime.
School administrators expelled
students for the rest of the term, which
was 3 months of school
 The plaintiff then accused the school
administrators that they were not
acting in “good faith” and the
punishment did not fit the crime.
 Court of Appeals upheld that the
decision stood because the defendants
11th Amendment
Immunity and Local
School District
 Duval County
could be
considered an
“arm” of the state
of Florida, but does
the state assume
its liability when
Duval County is
sued?
 11th Amendment
Immunity and Local
School Districts
 Whetherthe local district does fall
under 11th amendment immunity is
based on the following criteria:
 1) political and financial autonomy
 2) whether the school district is
concerned with primarily local problems
and not state problems
 3)does the school board have the
authority to sue and be sued in its name
 4) whether the school district has the
 11th Amendment and
Local School Districts
 When a district can elect its school
board member by popular vote, can
own property, and has local funding,
a school district is considered local
and NOT a state entity.

 Duval County can be sued and the

state of Florida not assume the
liability.
Who really has
immunity?

http://www.youtube.com/watch?v
=8hGvQtumNAY&feature=related
Questions