Student Injured at School in Virginia
Student Injured at School in Virginia
Every parent wants their child to be safe at school, but if they are injured, what happens? This is just the first of many questions. Who is responsible for their medical bills and other damages? Are schools liable for sports injuries? What about bullying or playground fights? The answer depends on several factors, including what kind of school it is, how the injury occurred, and whether it was foreseeable. But in some instances, the school does have liability for student injuries in Virginia.
What is the School Responsibility for Student Injury?
You probably think that your child’s school has a duty to keep your child safe, but in a legal sense, that is not always true. If your child was hurt at school, you may be able to sue for negligence, but Virginia requires most lawsuits against schools to be decided based on a standard of gross negligence. Negligence, in simple terms, means that a person or entity had a duty to others, and failed to carry out that duty.
How does gross negligence relate to negligence? Ordinary negligence refers to any act that causes someone to fail in their duty to others, but gross negligence shows a complete failing in that duty. In other words, it is not enough to prove that the school or a school employee failed to prevent your child’s injury. It will need to be proven that the mistake involved “a reckless disregard for legal duty and the consequences on others.”
What is Sovereign Immunity and How Does It Affect My Case? Is There Teacher Liability for Student Injury in Virginia School Districts?
The concept of sovereign immunity is several centuries old, and it initially meant “the king can do no wrong.” In terms of current American law, sovereign immunity generally means that government agencies and their employees are immune from lawsuits except under certain conditions. Most of the time, if a government employee – in this case, a teacher or administrator in a public school – acts within the “scope of their employment,” they will have immunity from negligence, personal injury, lawsuits.
What Exceptions Are There Where the School is Not Liable?
There are several important caveats to keep in mind on when sovereign immunity applies:
First, sovereign immunity applies only to government employees. If your child goes to a private school, the private school does not have immunity and it may be easier to sue the school for negligence.
Second, it is very difficult to sue a school over sports injuries. Sport injuries, in most cases, liability is not attributable to the school because the students and their parents have assumed the risks of playing a sport. Usually, the parent signs a waiver saying something akin to, “I understand my child might be hurt playing field hockey and I give them permission to play.” However, in there are cases where gross negligence could be present in sports injuries – for instance, if your child’s coach expected all the kids to play in 100-degree heat and did not allow water breaks, the risks of heat stroke could be argued as foreseeable. Along the same line playing sports generally involves having access to water and taking breaks and having properly maintained facilities.
If your child goes to a public school and is injured, you should speak with a Virginia personal injury lawyer. The lawyer can go over the details of your child’s injury to help you determine if the employee in question was really “acting in the scope of their employment”. Generally, if the person was acting in a bizarre or reckless manner, they probably were not acting within that scope. For example, if a teacher came to class drunk and hit your child, this would most likely not be considered appropriate conduct within the scope of employment.
What Happens When a Child is Injured at School by Another Student?
If this happened in a public school, you will need to be able to prove the injury was foreseeable in order to have a case against the school. Simply failing to stop a bully from hitting another child will not meet the burden of proof for negligence in most cases. If you can prove that the school was made aware of the bully’s violence or threats on multiple occasions, had plenty of time to address the situation, and did nothing, you might be able to make the case that this was a foreseeable injury. Likewise, if the school did not staff enough people to properly supervise the number of children in class or at recess, it may be foreseeable that the limited staff could not keep an eye on all the children, and an injury might happen.
For example, if Billy’s mother emailed and called the school about Jake bullying her son, she might have a long paper trail showing her efforts to inform the school of the problem. In this case, evidence might include her numerous emails to the teacher and principal, calendar entries when she met with school officials, and medical records from multiple times that Billy got hurt at school. There could also be video surveillance if the school uses security cameras or another student shot video of some bullying incidents on their phone.
What if this bullying culminated in Jake punching Billy in the face and shoving him down the stairs? If Billy has several broken bones, this could mean an expensive hospital bill for Billy’s mom, especially if he needs surgery for any of his injuries. Billy might miss several days of school, causing his mom to miss work. She might not be comfortable sending him back to school when heis better since she does not have assurance Jake will not harm her son again. She might have to figure out how to move him into private school mid-semester, or find other learning options.
Could the school be liable for Billy’s injuries under this scenario?
Due to sovereign immunity, the school is not automatically liable just because a child was hurt while at their school. there is an argument under this example, however, that the school is guilty of gross negligence because the school was repeatedly told of the problem and repeatedly failed to discipline or suspend Jake for his actions.
Remember that it is also important to show the injuries to your child were foreseeable based on the teacher’s or administrator’s behavior. Billy’s mom could argue that his injuries were foreseeable because the school knew about the many previous instances of Jake’s bullying, including seeing pictures of Billys prior and more minor injuries. It is reasonable to think that a bully will continue going after their target if no one intervenes and proper consequences are not enforced, so it is arguable that Billy’s injuries were foreseeable given the school’s lapse in disciplinary procedures. Remember there is always at least two positions in litigation and in law. The school will have a voice and argument on why the school should not be held responsible. The school might argue that this is not gross negligence. Documentation may be the key to illustrating the long history of bullying that was ignored despite the many requests and informing parents provided to the school.
What about Jake and his family? In most cases, a minor will not be found liable for damages, except in a few cases where they are close to adulthood. Additionally, even if they were found liable, a child or teenager would probably not have the money to pay your claim. In a few cases, the child’s parents or guardian may be found liable. Parents homeowner’s insurance may have a policy that covers such litigation and it is important for an experienced attorney to review the homeowner’s policy to see if the injured party can recover from the aggressor or their parents.
What Should I Do If My Child is Injured Due to Dangerous Conditions at School?
As always it is extraordinarily important to document everything. Taking pictures of the injuries, the conditions that caused the injury. Medical treatment should be sought immediately for them.
Ask your child how it happened. Sometimes kids are afraid or embarrassed to talk about what happened. Let them know you are not mad andyou just want to know what occurred.
If you find out what happened from your child, speak to the school authorities right away. Send them photos and evidence to document the bullying and ask what is being done to discipline the other child. Some parents ask for a meeting with the aggressive child’s parents, but this may have mixed results. In some cases, getting the bully in trouble can encourage additional abuse by the aggressive child. Another option is to inquire if your child can switch to another class or schedule to avoid the bully. Be sure to report any subsequent bullying and again ask the school administrator what steps are being taken to prevent more incidents.
If your child’s injuries are serious, sometimes the parents can be persuaded to pay the medical bills. It is often best not to approach the parents of the bully yourself. Instead, speak with a Virginia school injuries attorney to learn what your options may be. In some situations, your lawyer may be able to speak with the child’s parents or the school on your behalf.