1. 4/28/2009 LITIGATION TRENDS IN SCHOOLS April 29, 2009 Mark E. Davis Needham, Davis, Kepner & Young 1960 The Alameda, Suite 210 San Jose, CA 95126 408.244.2166 Recent Trends In School Litigation I. Sexual Harassment II. Student-to-Student Harassment III. Employment IV. Molestation V. Dangerous Condition VI. Negligent Supervision VII. Sports Injuries VIII. Anti-SLAPP Litigation IX. Liability Against Entity/Employee X. Post Incident Communication (media; parents) XI. Verdicts (liability/damages) XII. Procedures Within the Court System 1

2. 4/28/2009 I Sexual Harassment A. Definition “ Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual s work performance or creating an intimidating, hostile or offensive working environment.”[29 C.F.R. section 1604.11(a). 1980 Guidelines By Equal Employment Opportunity Commission. B. Liability 1. Employer 2. Supervisor (strict liability) 3. Co-employees C. Defenses 1. Reasonable steps taken to prevent 2. Employee unreasonably failed to utilize preventative and corrective measures 3. Use of procedures would have reduced/prevented the harm D. Damages 1. Compensatory 2. Punitive 3. Attorneys fees 2

3. 4/28/2009 II Student-to-Student Harassment A. Theories (1) Title IX (if received federal money) (2)42 U.S.C. Section 1983 (3) California Education Code section 220 B. Criteria (a) severe & pervasive (b) acknowledge knowledge (c) deliberate indifference C. Liability (1) District (2) Employees D. Damages 1. Compensatory 2. Punitive 3. Attorney fees (plus lodestar) 3

4. 4/28/2009 E.D onovan v. Poway USD (2008) 167 Cal.App.4t h 567 1 . Sexual orientation harassment 2. Damages: 300K 3. Fees:421K (336K) 4. Against District, principal & assistant principal F. Defenses 1. Policy 2. Training 3. Investigator and take appropriate action III Employment A. Retaliation 1. Nexus between complaining against a public policy violation and subsequent adverse employment action B. Age Discrimination 1. Using age as a substantial factor in an adverse employment action C. Liability: employer 4

5. 4/28/2009 D. Damages 1. Compensatory 2. Attorneys fees E. Defenses 1 Adopt and follow correct policies 2. Documentation a) Basis for decision b) Performance reviews IV Molestation A. Theories of Liability 1. Respondeat superior 2. Negligent Hiring 3. Negligent Supervision B. Damages 1. Compensatory 2. Punitive damages (against employee) 3. Attorneys fees 5

6. 4/28/2009 C. Statute of Limitations D. Defenses 1. Pre-employment screening (background check) 2. Adopting and following policies 3. Training E. Most Frequent Occurrences 1. Off campus 2. On campus after hours 3. Part time coaches 6

7. 4/28/2009 V Dangerous Condition A. A substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is reasonably foreseeable that it will be used. (Government Code section 830(a).) B. Defenses 1. Trivial defect 2Failure to use due care 3. Unforeseeable use 4. Lack of notice 5. Design Immunity (property was constructed in accordance with an approved plan or design; 830.6) C. Use of Property By Others 1. Use permits 2. Contract (indemnity; listing the District as an additional insured) 3. Verification of insurance 7

8. 4/28/2009 VI Negligent Supervision A. Standard: Districts are not strictly liable as the insurers of students’ safety. However, school authorities have a duty to “supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection.” The standard is that “which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances.” The California Supreme Court has recognized “the commonly known tendency of students to engage in aggressive and impulsive behavior which exposes them and their peers to the risk of serious physical harm.”(Daily v. Los Angeles Unified School District (1970) 2 Cal.3d 741, 748.) B. Special Education Students 1. California case law is still emerging 2. M.W. v. Panama Buena Vista School District (2003) 110 Cal.App.4 th 508 (a) “Given the foreseeability of harm to special education students, the well settled statutory duty of school districts to take all reasonable steps to protect them, the relatively minimal burden on school districts to ensure adequate supervision for any students they permit on their campuses prior to the start of school, and the paramount policy of providing our children with safe learning environments, we find the district owed the minor a duty of care to protect him from assault on campus.” 8

9. 4/28/2009 3. Jennifer C. v. Los Angeles Unified School District (2008) 168 Cal.App.4 th 1320 (a) There is an affirmative duty to protect a person from third parties if a special relationship exists. (b) Schools “may need an incentive to drive compliance with the duty to provide adequate supervision.” (c) An out of the way/hidden area on campus where a “special needs” child can be victimized creates a reasonably foreseeable risk even in the absence of prior similar occurrences. 4. Defenses a. Reasonable policies & procedures regarding supervision b. Following those polices & procedures c. Causation d. Documentation (to establish the absence of prior incidents) 9

10. 4/28/2009 VII Sports Injuries A. Kahn v.East Side Union High School District (2003) 31 Cal.4 th 990 1. Liability if the defendant intended to cause injury or acted recklessly in that his conduct was entirely outside the range of ordinary activity involved in teaching or coaching the sport in which plaintiff was participating. 2. No liability for carelessness or negligence 3. Applicable when a student voluntarily engages in a sporting activity. B.I njuries During Physical Education Class 1. Assumption of risk doctrine is inapplicable for injuries occurring during “regular school hours.” 2. Defendants are still held to a standard of reasonable care during regular school hours, i.e. there can be liability for carelessness or negligence.(Hemady v. Long Beach USD (2006) 143 Cal.App.4t h 566.) C. Releases/Waivers 1. Parties can release claims (even those of a minor) for ordinary negligence if a matter of public concern is not involved. 2. A release will not apply to “gross negligence” (“want of even scant care, “an extreme departure from the ordinary standard of conduct.”) 3. City of Santa Barbara v. Superior Court (2007) 41 Cal.4 th 747. 10

11. 4/28/2009 VIII Anti-SLAPP Litigation A. CCP section 425.16 1. The court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. It is defendant’s burden to demonstrate that the acts of which plaintiff complains were taken “in furtherance of the defendants’ right of petition or free speech under the U.S. or California Constitution in connection with a public issue.” (Section 425.16(b)(1).) 2. If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. B. Right of Petition or Free Speech 1. Communications (with media, etc.) 2. Investigations 3. Due process hearings with respect to student discipline 4. Official acts privilege (CC section 47) 11

12. 4/28/2009 IX Liability Against Employees/Entity A. Employee Liability 1. If not in course and scope of employment 2. Punitive damages B. Liability Against Entity 1.“Target” defendant 2. Increased chance of collectability 3Increased theories of liability a. Inadequate policies b. Inadequate supervision c. Inadequate facilities X Post Incident Communications (media; parents) A. Increased Contact/Inquiry B. Responses are occasionally necessary /appropriate (i.e. emergency situations) C. Potential risks 1. Misstatements/misinterpretations 2. Admissions D. Establishing protocol 1. Contacting risk manager, JPA, attorney 2. Designating a communications point person 12

13. 4/28/2009 XI Verdicts A. Liability B. Damages 1. Small cases 2. Large cases (e.g. wrongful death, brain damage, quadriplegia) XII Procedures Within the Court System A. Formal litigation 1. Demurrer; motion to strike 2. Answer 3. Written Discovery 4. Depositions 5. Arbitration 6. Settlement Conference 7. Trial 8. Appeal B. Alternative Dispute Resolution C. Expediting a decision regarding how the case should be handled 13