A STUDY OF TORT LIABILITY IN MICHIGAN SCHOOL flISTRICI-‘S TImsIs Ior I'Im Degree oI Ed. D. MICHIGAN STATE UNEVEESETY Lewis Chapman Wood 1962 This is to certify that the thesis entitled A Study of Tort Liability in Michigan School Districts presented by Lewis Chapman Wood has been accepted towards fulfillment of the requirements for Ed.D. degree in Education A342. .. x/i; Major professor Date August 17, 1962 O~169 LIBRARY Michigan State University ABSTRACT A STUDY OF TORT LIABILITY IN MICHIGAN SCHOOL DISTRICTS by Lewis Chapman Wood Generally, research in the area of school connected liability for torts has been approached from a study of statutes, Judicial opinion, and court cases. ‘In this study, appointed school administrative staff members were inter— viewed using essentially a case study approach. The Michigan Supreme Court has held that, except in instances involving the use of motor vehicles, the doctrine of governmental immunity from torts applies to school dis- tricts but that teachers and other school employees may be held liable for their negligence. Strong dissenting minority court opinions against upholding school non—liability, and recent decisions declaring liability of municipalities and charitable organizations, have made the status of school district liability somewhat uncertain. Purpose of the study.--The purpose of the study is: (l) to identify and examine problems of school operation relating to liability of school districts and/or school personnel;(2) to determine the effect present liability laws have on school policies, practices, and programs in Michigan school districts; and (3) to make recommendations to school Lewis Chapman Wood officials, boards of education, and others, relating to prob- lems due to liability of school districts and/or school personnel. Methodology.——An interview schedule was designed around three fictitious situations to allow interviewees free ex— pression to realistic problems and to insure uniform consistent deliberation of certain aspects of the liability of school districts and school personnel. School officials interviewed, included superintendents of schools, business managers, and district assistant superintendents in Michigan school districts. The data were stratified by school size and the school official's perception of school liability. Conclusions.--The statements listed below are the major findings of the study. (1) Michigan public school adminis- trators take an apprehensive View toward possible and potential school liability hazards but are confused as to the nature and extent of liability hazards under existing law. (2) General liability insurance is purchased by ap- proximately three-fourths of Michigan school districts. School officials appear to lean heavily on the advice of insurance agents and the expectation that insurance affords sufficient protection. (3) Programs and services in Michigan public schools appear to be reinforced along conventional lines by possible liability hazards. (u) Prescribed stan- dards of care, implied under present liability laws, have Lewis Chapman Wood apparently not been translated into plainly set forth specifics relating to the operation of public school edu- cational programs. (5) Insurance appears to be over—rated by school officials as a means of protecting the injured and as a device for protecting teachers and other employees from possible personal liability. (6) Liability has not generally been the basis for school policies, rules, regulations, and operating procedures in Michigan school districts. Recommendations.--The major recommendations of the study include: (1) That clarification of the confusing status of school liability in Michigan be considered a legis— lative responsibility. (2) That legislation abrogating governmental immunity be passed which would impose strict liability without fault as a condition. (3) That laws be enacted giving protection to teachers from financial loss due to negligence. (A) That school liability be considered a premise supporting well defined administrative policies and operating procedures. (5) That school officials acquire a sound knowledge of their particular state's school tort liability laws. (6) That professional education associations promote improved legislation relating to liability. A STUDY OF TORT LIABILITY IN MICHIGAN SCHOOL DISTRICTS By Lewis Chapman Wood A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF EDUCATION Department of Administrative and Educational Services 1962 ACKNOWLEDGMENT Sincere appreciation is extended to Dr. William V. Hicks, Dr. Cole Brembeck, and Dr. Donald Leu, members of the writer‘s guidance committee, for their advice and encouragement. The writer is deeply grateful to Dr. William Roe, committee chairman, and Dr. Wilbur Brookover, committee member, for their wise counsel and assistance throughout the progress of the study. Grateful acknowledgment is also made to Mrs. Caroline Thrun who reviewed the manuscript from a legal point of View and offered suggestions to the writer. In addition, the writer wishes to acknowledge the cooperation of the forty-five public school administrators who were the interviewees in the study. ii TABLE OF CONTENTS ACKNOWLEDGMENT. LIST OF TABLES. . . . . . . . . . . . Chapter I. II. III. INTRODUCTION . . . . . . . . Importance of Study . . . . . . . Need for the Study . . . . . Statement of the Problem . . Questions Studied by This Investigation Methodology. . . . . . . Limitations of the Study . . . . Definition of Terms . . Organization of Following Chapters . . REVIEW OF RELATED STUDIES AND GENERAL BASIS OF LIABILITY . . . . . . . . Survey of Related Literature . . Education and Our Court System . . . Tort Liability. . . . . . . Governmental Immunity . . . Duties Not Spelled Out in Law. Liability Hazards. . . . . . . . Summary . . . . . . . . . . . STATUS OF LIABILITY IN MICHIGAN AND OTHER SELECTED STATES . . . . . . . . Liability Status of Michigan Public Schools. . . . . School District Immunity Upheld in Court . . Liability of School Board Members . . Liability of School Employees. . . . Indemnity for Damages Recovered . . School District Liability in Selected States . . . Summary . iii Page ii vi Chapter Page IV. MICHIGAN SCHOOL OFFICIALS PERCEPTION OF SCHOOL LIABILITY AND SCHOOL LIABILITY RISKS . . . . . . . . . . . . . 88 Introduction . . . . 88 School Liability of General Concern . . 89 General Knowledge of School Officials. . 9O Perception of School Liability Hazards in Transportation . . . 95 Perception of General School District Liability Hazards . . . . . . . . 100 Liability of Individuals . . . . . . 104 Liability Hazards . . . . . . . . 111 Summary. . . . . . . . . . . . 126 V. GENERAL LIABILITY INSURANCE . . . . . . 129 The Purchase of General Liability Insurance. . . 130 Reasons for Carrying Liability Insurance. 131 Benefits Provided by Liability Insurance. 136 Characteristics of Liability Insurance . 137 Scheduled Hazards Type of Insurance Policy. . . . 139 General Comprehensive Liability Form . . 140 Types of Liability Policies Purchases by Schools . . . . . . . . . . 141 Groups of Exposures. . . . . . 142 Insurance Purchasing Practices . . . . 150 Summary. . . . . . . . . . . . 157 VI. SCHOOL PRACTICES AND PRECAUTIONS RELATING TO LIABILITY . . . . . . . . . . . 160 Liability Laws Uphold Standards of Care . 160 School Policies, Operating Procedures, and Regulations Pertaining to Liability and Standards of Conduct. . . 162 Precautions and Limitations in School Practice . . . . 167 Perception of Liability and School Practice and Policy . . . . 174 Size of School District and School Practice and Policy . . . . . . . 176 Summary. . . . . . . . . . . 182 VII. SUMMARY, CONCLUSIONS, AND RECOMMENDATIONS . 186 Summary. . . . . . . . . . . . 186 Conclusions . . . . . . . . . . 190 iv Chapter Page Recommendations. . . . . . . . 193 Suggestions for Further Study . . . . 195 APPENDIX A . . . . . . . 196 BIBLIOGRAPHY. . . . . . . . . . . . 207 Table 10. 11. 12. 13. LIST OF TABLES Page Knowledge of School Officials in Selected Areas of Inquiry . . . . . . . . . . 92 School District Liability Hazards in Trans— portation as Viewed by Michigan School Officials . . . . . . . . . 97 Opinion of School Officials Regarding School District General Liability Hazards . . . . 102 Responses Indicating the Possible Liability of Individuals. . . . . . . . . 106 Hazards Cited by School Officials According to Number Cited Per School Official. . . . 113 Comparison of Yes and No Responses in Various Areas of Possible Liability . . . . . . 115 Areas of School Operation Considered Liability Hazards by School Officials . . . . . . 122 Number of Officials Viewing Liability Insurance As Desirable or Necessary Compared to the Number of Schools That Carry Liability Insurance . . . . . . . . . 130 Reasons Given for Carrying Liability Insurance by Frequency of Response . . . . . . . 131 Opinion As to the Degree of Protection Provided Employees and the Injured by School Liability Insurance. . . . . . 132 Number of Responses Indicating General Liability Exposures by Type of Policy . . . 138 Comparison of Liability Coverage by Type of Exposure. . . . . . 143 Number of Responses Showing Automobile Liability Insurance by Policy Form . . . . 146 vi Table 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. Limits of Liability and Coverage by Frequency. Number of School Districts Using Legal and Insurance Counsel Regarding the Purchase of Liability Insurance. . . . . . . . Number of School Districts Who Purchase Liability Insurance on Bids or Proposals and Number Who Waive Governmental Immunity in Insurance . . . . . . . . . . . . Number of Responding Officials Indicating Liability As a Basis for School Policies and Procedures . . . . . . . . Distribution of Responses Indicating Policies Not Designed Due to Liability but Viewed As Diminishing Liability Hazards . . . Responses Indicating Precautions in School Operations. Distribution of Responses Showing Precautions Due to Liability by School Program Areas. Distribution of Responses Showing Effect of Liability on School Service by Area . . Relationship Between School Officials' Perception of Liability and School Policies, Practices, Regulations, and Precautions Relating to School Liability. . . . . . Board of Education and Staff Differences by Class . . . . . . . . . . . Relationship Between Size of School District and School Policies, Practices, Regulations, and Precautions Relating to School Liability . . . . . . . . . . . vii Page 151 152 155 163 166 168 170 173 177 179 183 CHAPTER I INTRODUCTION Importance of Study Education today is a vast gigantic public enterprise, swelled with growing numbers of pupils, attempting to meet broad, extended goals of education resulting in school programs which include many and varied activities unknown to the traditional school. As a general rule school districts have been immune from legal suits arising from the tortious acts of their officers, agents, or employees, unless state statutes state otherwise. 0n the other hand, school employees, who serve the public at salaries which do not allow them to accumulate wealth to protect themselves against tort liability suits, are liable for their own negligence unless protected by state statute. Today experts in the field of law1 and insuranced 11 1Harry N. Rosenfield, ”Liability for School Accidents, An address delivered at the Annual Meeting of the Michigan High School Athletic Association, December 1, 1955 (Lansing, Michigan: The Association, 1955). 2W. O. Hildebrand (ed.), Agency Bulletin, Reprint of condensed version of address by Laurence D. Smith, Michigan Association of Insurance Agents, Lansing, Michigan, to the Annual Convention of Michigan Association of Insurance Agents, September 16, 1955. 1 2 point out possible loopholes in the application of the doctrine of governmental immunity in Michigan, direct school Officials' attention to successful steps toward partial or complete abrogation of the immunity doctrine in other states, and cite a growing trend toward a more liberal attitude in favor of the injured party by our courts. The conflict and cross currents of operating a modern educational program under confusing, uncertain, and possibly antiquated tort liability laws is the genesis of this study. Need for the Study The effect of liability, both corporate and personal, on school practices, policies, and programs is of concern to the teaching profession, school board members, school officials, and to the public at large. The extent of the problem and relative urgency have engaged the attention of numerous professional writers in the field of school law and the subject has occasionally been the topic of research by educators. At first glance liability may appear unrelated and unimportant as far as school program is concerned. Careful reflection of one facet only: the possible liability of the teacher in event of injury to a child in or out of the class— room appears as not merely incidental to the teacher's environs but rather a factor which may modify and condition the pupil-teacher relationship. 3 Certainly teachers do not wish to become involved in liability suits nor would they choose to perform knowingly an act which might cause a suit to be brought against the school district. 0n the other hand, the school's curriculum and the program within any particular area or classroom may be limited by the deliberate cautiousness of teachers to keep out of harm's way. Even though the possible effect of liability on the school's program be disregarded, study of the topic is justified by the increasing interest and attention being given to the uncertain perplexities of liability connected with school operations. A growing interest nationally is evidenced by the increasing number of publications and of articles in professional journals devoted to the subject. This greater concern has developed because of (1) a more liberal attitude in favor of the injured party by our courts; (2) an increased tendency by society in general to expect compensation for injury, accompanied by an apparently greater willingness to seek compensation for damages through the courts; and (3) the successful liability suits (though limited to certain states) in which the injured have been awarded damages, in spite of school immunity, through court- declared exceptions. The partial abrogation of the immunity doctrine by statute, statutes which appear to nullify school non-liability, and a general dissatisfaction of governmental immunity by the courts are also factors. 11 In Michigan, there can be little doubt that a primary component of current concern is rooted in recent decisions handed down by the Michigan Supreme Court which appear to have left the time-honored doctrine of governmental immunity from tort liability tottering and uncertain. The question may be posed, "What do school officials do when faced with the possibility of greater vulnerability under liability laws?" Do school officials upon clashing with apparent liability risk circumscribe the activities of the pupils and teachers? When confronted by apparent liability risks, what measures are taken by school officials to protect the school district and its employees from possi- ble hazards? The question of whether liability or non—liability results in any differences in the standard of care provided children also needs to be investigated, for the interest of children is of primary importance. This factor should be of interest to those responsible for changes in the law. The problem of liability is frequently approached from a study of statutues, judicial opinion, and court cases which tend to offer solutions in terms of legal causes and remedy. This approach has been effective in identifying dangers, pointing out relative importance, and establishing a general awareness of liability. This approach fails to make any evaluation of the effect of liability on the school and its program from the school's point of View nor does it 5 provide data peculiar to the school and education indicating possible desirable changes in law relating to liability. The problem of liability is one of growing importance due to the general trends to be found in the area of liability, cited previously, and those concerning the probable future direction of the modern school program. Risk of liability could possibly impede progress in the future expansion of the school program for the very activities peculiar to the modern educational program are the very same activities most likely to be found outside the scope of im- munity protection. The personnel, certificated and uncerti- ficated, to operate these activities have the least defined legal roles regarding their legal position and responsibility. The activities engaged in are likely to be those most prone to divided responsibility, lack of close organization, dis- tant supervision, and accident; all factors increasing the hazards of liability risk. Statement of the Problem The purpose of this study is: (1) to identify and examine problems of school operation relating to the liability of school districts and/or school personnel; (2) to determine the effect present liability laws have on school policies, practices, and programs in Michigan school districts; and (3) to make recommendations to school officials and boards of education relating to problems due to liability in 6 administration of schools as well as recommendations for changes in liability laws. Questions Studied by This Investigation This study is descriptive research primarily, but does employ inferential statistics. Appropriate statistical hypotheses (null or directional) are confined to the data analysis sections of the study.3 The ten problems for investigation which provide guidance for this study are: 1. To what degree are school officials acquainted with knowledge and documentary information pertaining to liability? 2. What is the perception of school connected liability risks and hazards held by school officials? 3. What are the prevailing insuring practices pertaining to general liability of schools in Michigan? 4. Is protection against school connected liability merely an insurance problem affecting the business-management aspects of school operation or is it viewed as a hazard which may circumscribe and limit the school program? 5. What measures and precautions are taken by school officials to meet possible liability hazards? 3Joseph L. Saupe, "A Plea for Order,” Michigan State University, College of Education Quarterly, 7:3—9, Summer, 1961. Eknumafeels that the statistical hypothesis should be reserved for the data-analysis section of the research re— port. He reasons that: ”It [statistical hypothesis] is an integral part of the statistical tool and should not be separated from this tool. Elevating the 'null' hypothesis to the outset of the report tends to place undue attention 7 6. To what extent have the hazards of liability placed or imposed limitations and restrictions on school programs in Michigan School Districts? 7. What areas of school connected liability are of most concern to school officials? 8. To what extent has school connected liability formed a base for school policies and regulations insuring safety, providing for adequate supervision, and eliminating liability hazards? 9. Is there a relationship between how school officials perceive liability hazards and precautionary practices and policies of the school system pertaining to liability? 10. Do precautionary practices and policies due to liability vary by size of school district? Methodology Essential background for this study consisted of the collection, review, and interpretation of legal principles pertaining to tort liability and the examination of lia— bility insuring procedures, forms, and coverages. A second preparatory step providing additional background for the study was the usual survey of prior research and related information. on the statistical techniques of the study. These techniques are merely tools and should not be allowed to overshadow the substance of the research." 8 Upon completion of the preliminary review of the liter— ature, a proposal for the study was submitted to the writer's doctoral committee. The means of obtaining data for the study, as presented in the accepted proposal, was to be by personal interview using a schedule to assist in obtaining uniform data. Development of interview schedule.——The interview schedule was designed around three fictitious cases to allow the interviewee free expression to realistic situ— ations. Questions relating to the cases followed each case to insure uniform, consistent deliberation of predeter- mined aspects of the case bearing on the liability of school districts and/or school personnel. Data relating to the school district, information on school policies, practices, precautions, and particulars regarding the school districts liability insurance program were added to the schedule as direct questions. One page was devoted to insurance information which could be obtained from the school's liability policy at the time of the inter- view or could be completed at a later date by school officials and mailed to the writer. This procedure would allow the school official to secure accurate information regarding insurance even though the policy was not available at the time of the interview. “Appendix A. 9 Upon completion of the above instrument, designated schedule one, it was found necessary to reorganize and rearrange the order of the questions in order to avoid suggesting answers to the interviewee. Questions were again reworked to clarify meaning and to provide continuity in an interview situation. This revision was designated schedule two. The above, schedule two, was pretested by inter- viewing teachers. It was still apparent that some questions still suggested answers to subsequent questions. Again some items were placed in different order to overcome this handi- cap. In other cases the wording of the question was changed, usually toward questions of an openéended nature, to avoid giving clues-to answers and clarify the meaning of questions. This was designated schedule three. This revision, schedule three, was pretested by inter- viewing a limited number of teachers, principals, and school superintendents. Again there was some evidence of conflict between providing the interviewee sufficient information to answer the questions intended and giving information which, at least in part, provided clues to answers or tended to influence interviewee's response. The schedule was still too long to be given in a length of time of one and one— half hours, thus the least essential items had to be elimin— ated. This was done after consultation with two of the members of the writer's doctoral committee. 10 Schedule four included the above revisions and was the 5 schedule used for this study. The conflict between pro— viding information sufficient to convey the intent of the question and providing clues to answers was resolved in the direction of a minimum of clues to answers. The schedule is thus designed to provide a guide to follow in the inter- view which has to be fitted to the knowledge of the inter- viewee and the general flow of discussion and line of thought in each interview situation. Selection of interviewees.--Since the data was to be obtained by personal interview of public school officials, limitations imposed by time and finance dictated confine- ment of the study to a particular geographical area of the State. The area selected was south-western and south-central Michigan which included the Counties of Allegan, Barry, Berrien, Branch, Calhoun, Eaton, Ionia, Ingham, Jackson, Kalamazoo, Kent, Muskegon, Ottawa, St. Joseph, Van Buren, and Washtenaw. All high school districts operating schools within the geographical area selected were then listed by school membership and stratified on the following basis: Class 1. School districts with a membership of 4,000 or more pupils. Class 2. School districts with a membership greater than 1,000 but less than 4,000 pupils. 5Appendix A. 11 Class 3. School districts with a membership of less than 1,000 pupils. The numerical limits chosen to determine the classes were selected as those in which it might be expected that there would be differences in: 1. Local availability to the school district of legal advice and opinion. 2. Use of consulting attorneys and insurance experts. 3. Size of school district administrative staff and resultant specialization in administrative duties. Since there were only sixteen school districts listed in Class One, the school district with the least membership was eliminated, giving fifteen school officials to be inter- viewed in this class. Fifteen school districts from each of the other two classes were chosen by random sampling proce- dure employing a table of random numbers. Time of study.-—School officials in the selected schools were interviewed during the summer of 1961. At this time there was speculation as to the effectiveness of govern- mental immunity undoubtedly based on strongndissenting;opinion expressed in recent school6 liability suits and recommen» dations by insurance interests urging that school districts 6Watson v. School District of Bay City, 324 Mich. l; Richards v. School District of the City of Birmingham, 348 Mich. 490. V‘: 12 in Michigan consider insuring against possible liability.7 The interviews were completed prior to the flurry of decisions in non—school cases handed down against institu- tions formerly immune in late 1961 and early 1962.8 Nature of interviews.--Each school was contacted and interview dates set requesting at least one and one-half hours of time for the interview. Officials interviewed included superintendents of schools, school business managers, and district assistant superintendents. No differentiation nyp is possible in the study as to the title of the official 11. xx ‘*r 1 interviewfbecause of the frequency, especially in large school systems, of dealing with more than one official in a single interview. The interviewer was often referred to an official for particular information and on some occasions two or more officials were interviewed. Time spent in each school system ranged from one hour to three hours depending on the time which the busy school official could spare in a tight schedule, time spent in dis- cussing various items on the interview schedule, and avail- ability of factual information relating to insurance. Where possible the schools general liability insurance policy was personally examined and data recorded directly from the policy. 7Hildebrand, o . cit., ”Liability of School Districts,' Michigan Agency Bulletin (Lansing: The Agency, 1958); Bert~ hold Woodhams, Circular letter to Michigan Boards of Education (Howell, Michigan: By the author, n.d.). 8 Cf. post., pp. 64-66; Parker v. Port Huron Hospital, 13 Recording of information.-—Information was written and recorded on an interview schedule which provided space for answers during the interview. After the interview the sched- ule and recorded data was reexamined and added to for com- pleteness. This was necessary for it was impossible to conduct a good interview and do more than jot down notes. Treatment of data.--Based upon answers given in the interviews all completed questionnaires were classified as to the official‘s perception of school liability as follows: Class P—l: Concern only with the liability of the school district. Liability of personnel not a hazard. Class P-2: Concern is shown for both the liability of the school district and the liability of school personnel. Class P-3: Concern is shown for liability of personnel. School district is immune or only liable to the extent of loss of immunity at a future time. Thus the data from each school wagistratlfieo by school size and the school official's perception of liability at the time of the interview. Tables were constructed with nine columns, one column for each possible classification based on size and perception -w.‘ .w__ I I“ "I l. Mien. agl; 361 Mich. 1; Williams v. City of Detroit, Christie v. University Regents, 364 Mich. P\)\)J OCT\ 1)) -+— 14 of liability; such a table being made for each question. ' From the data broken down in these tables, data has :dm— marized, appropriate tables made, statistical work completed, and the report written. Limitations of the Study Since each state has different statutes and legal interpretations, it follows that the status of tort lia- bility of school districts and their employees will vary from state to state. This study is confined to the state of Michigan and thus any inferential generalizations from this study are contingent upon the particular circumstances to be found in each state. This study is limited to public school districts which operate high schools and does not include non-public schools, institutional schools, and institutions of higher learning. Liability insurance, where dealt with in this study, includes only liability insurance carried by the board of education to provide protection for the school district or its employees from the hazards of tort liability. Such insurance implies a jury damage suit settlement and does not include casualty accident insurance which does not depend on liability as a factor for settlement of claim. Workmen's Compensation Insurance is excluded from this study as again liability is not a factor for claim settlement. 15 This study does not include liability under breach of contract. A further limitation is the apparent and inevitable fact that the writer is not learned in the law nor in insurance, but is by professional training an educator and school administrator. Thus the study is confined and limited, as it deals with technical and professional infor- mation peculiar to law and insurance, to rather generally available knowledge and information within the scope of the writer's own specialized training in school administration. Definition of Terms Accident.——An event which takes place without one's foresight or expectation; an event that proceeds from an 9 unknown cause and therefore not expected. Ag£,—-A statute; a bill which has been enacted by the legislature into a law.10 Aggg§.--0ne who acts for the insurance company in negotiating or effecting a contract for insurance. Appeal.--Any complaint to a superior court of an ir- justice done by an inferior one.ll 9James A. Ballentine, Law Dictionary with Pronuncia- tions (Rochester, New York: The Lawyers Co-Operative Pub- lishing Co., 1930), p. 13. 10Ibid., p. 19. 11 Ibid., p. 90. l6 Bodily injury liability.-—The liability which may 12 arise from injury or death of another person. Broker.--An insurance broker ordinarily is a solicitor of insurance who does not represent insurance companies in a capacity as agent but places orders for coverage with com- panies designated by the insured or with companies of his own choosing. The Michigan law has no provision for lie- 13 ensing brokers. Common law.--That body of unwritten law, founded upon general custom, usage, or common consent, and in natural justice, or reason; it is custom long acquiesced in or sanctioned by immemorial usage and by judicial decision.“L The retention of the common law in Michigan is expressly stated in the Michigan Constitution as follows: ”The common. law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are altered or repealed."15 Comprehensive policy. All-risk insurance with certain named exceptions.15 l2Michigan Insurance Reference Manual (sixth edition; Lansing, Michigan: Michigan Association of Insurance Agents, 1958), p. 158. 1 3Ibid. lU'Ballentine, op. cit., p. 243. l5Mioh. Const. 190s, Schedule Sec. 1. 1? Contractual liability.-—Liability assumed under any contract or agreement.17 Coverage.-—The guarantee against specific losses provided under the terms of the insurance policy. The word is used synonymously with the word "insurance," or "protection."18 Damages.--Indemnity to the person who suffers loss or harm from an injury; a sum recoverable as amends for a wrong.19 Exposure.--This term refers chiefly to the state of being open or subject to loss from some hazard or contin- 20 gency. Insurance.——A contract whereby one undertakes to indemnify another against loss, damage, or liability 21 arising from an unknown or contingent event. Interview schedule.--Frame of reference used to structure the interview between individual respondent and interviewer. Liability.--Broadly, any legally enforceable obliga- tion. The term is most commonly used in a pecuniary sense . 22 17%.. p. 162. 18Ibid., p. 162. 19Ballentine, op. cit., p, 325, 20Michigan Insurance Reference Manual, op. cit.,p.l65. 21 Ballentine, op. cit., p. 666. 22Michigan Insurance Reference Manual, op. cit.,p.l69. 18 Liability limits.--The sum or sums beyond which a liability insurance company does not protect the insured on a particular policy.23 Named perils.——Named peril policies specify what hazards are insured against, contrary to so-called all risk policies.24 Negligence.—-The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate human affairs, would do, or do something which a prudent and reasonable manwould not do.25 Products liability insurance.--Provides protection against claims arising out of the use, handling or consump— 26 tion of a production. Property damage insurance.—-Protection against lia— bility for damage to the property of another not in the care, custody, and control of the insured.27 Proximate cause.—-That cause of an injury which, in natural and continuous sequence, unbroken by any efficient 23Ibid., p. 170. 24Ibid., p. 174. 25Ballentine, o . cit., p. 857. Michigan Insurance Reference Manual, op. cit., p. 176. 2 7Ibid., p. 177. 19 ( intervening cause, produces the injury, and without which 28 the injury would not have occurred. Stare decisis.-—The doctrine that decisions of the court should stand as precedents for future guidance.29 Tort.-—An injury or wrong committed, either with or 30 without force, to the person or property of another. Perception.--Comparative apprehension and observable discernment. How one views, discerns, or observes. Respondent superior.--Let the principal or master be 31 answerable for the acts of his agent or servant. Statute.-—An act of the legislature as an organized body; it is the written will of the legislature, expressed according to the form necessary to constitute it a law.32 Organization of Following Chapters 1 Chapter II is a survey of related literature. Prior research in the area of school district liability is cited __ and the writings of experts in the fieldclsIreviewed:w-Itwfi includes a review of legal principles and essential infor- mation upon which liability of school districts and/or school employees is based. 28Ballentine, op. cit., p. 1042. 29gpgd , p. 1228. 3O;p;g., p. 1288. 31;p;g., p. 1131. 321bid., p. 1231. CI; 20 Chapter III reports the development and status of liability of school districts and their employees in Michigan and other selected states which have exceptional laws regarding liability or interpretations of laws not common to other states. Since this research is not designed to answer legal questions or to be used as a legal reference, sources of information are used in Chapters II and III, where possible, which are most likely available to school officials. These sources are secondary in nature, the primary sources being the original cases, statutes, legal digests, and reports located in law libraries. Chapter IV is a descriptive examination of Michigan school Officials' perception of liability and liability hazards connected with the operation of the public schools. Included is an analysis of the general knowledge of tort liability held by school officials. Chapter V concerns itself with general liability I insurance and presents a minimum of basic information re- ' lating to liability insurance as an aid in understanding // the general subject and the data presented. Data :sfgre- sented concerning the extent that insurance is purchased by Michigan school districts, characteristics of policies purchased, and purchasing practices of schools. Chapter VI deals with the effect liability has on school practices and program and investigates possible 21 relationship between the official's perception of liability and school practices and policies. Likewise,the possible relationship between size of school district and school policies, practices, and precautions is investigated. Chapter VII contains the summaries of the study, con— clusions, and recommendations. CHAPTER II REVIEW OF RELATED STUDIES AND GENERAL BASIS OF LIABILITY It is the purpose of this chapter to present a brief review of related studies and current literature, and, in addition, minimum essentials of the legal aspects of school connected tort liability. Although generalizations per- taining to tort liability should be avoided, certain general principles, legal research, and literature in the field of school law must be examined as a basis for a knowing approach to the problems of school tort liability. Laws, legal procedure, and judicial interpretations pertaining to the tort liability of school districts do vary from state to state although common-law immunity of school districts from tort liability is the general rule throughout the United States. Decisions in one state are not binding on the courts in other states; nevertheless, the precedent of decided cases in one state often influence the decision of courts in other states, especially where there is an absence of decided cases or lack of statutes within the state which apply to the facts of a particular case. 22 23 Legal principles, statutes, and court interpretations may change at any time and thus the picture of the current status of school liability must always take into account the date on which they were viewed. The application of broad concepts of liability to the mundane actions of boards of education, school officials, and teachers must also be modified by variations from state to state. Survey of Related Literature Early interest in the subject of tort liability arose as pioneers in school law made mention of the subject in their writings. In 1880, Finley Burke wrote §_T£eatise pp the Law pf_Public Schools in which he pointed out that courts generally held that school districts may not be held to respond in damages to persons injured non-contractually in or by the public schools.1 Lyndon A. Smith, in 1883, confirmed Burk's findings.2 In a general school law text appearing in 1916, Harvey Voorhees listed cases to show that neither school districts nor boards of education are liable for the trespasses, negligence, and other torts 3 committed by its officers unless made so by statute. lFinley A. Burke, A Treatise on the Law of Public Schools (New York: A. S. Barnes and Co., 188c),154 pp. 2Lyndon A. Smith, Recent School Law Decisions, U. S. Dept. of Interior, Bureau of Education, Ciro. No. 4 (Washington, D. C.: U. S. Government Printing Office, 1883): 82 pp. 3Harvey C. Voorhees, The Law of the Public School , System (Boston: Little, Brown, and Company, 1916), pp.55-5o. 24 Carmichael made the first specific study dealing with tort liability of school districts in 1926 which affirmed that neither school districts nor boards of education are liable for wrongful acts and negligence of their officers 1;, or agents under common law. In the same year J. B. Edmond- son's The Legal and Constitutional Basis p£_§_State School System appeared, which dealt specifically with Michigan law and judicial opinion.5 Edmondson concluded that school boards were governmental agents and, therefore, exempt from corporate liability for torts and, further, that school officers as individuals enjoyed a similar exemption from the torts of the school district.6 The next year, 1927, Trusler's text on school law concurred with the findings of the previous studies.7 A notable increase in the literature appears after the year 1930. In this year, J. F. Weltzin brought out his book, The Legal Authority pf_the American Public School, which discussed at some length and detail the statutes of California, Washington, and Oregon but pointed out that uHobert V. Carmichael, "Judicial Decisions Relating to Legal Liability of School Boards in the U.S.'I (unpublished Master's thesis, University of Chicago, Chicago, Illinois, 1926). 94 on- 5James B. Edmondson, The Legal and Constitutional Basis of a State School System (Bloomington, Illinois: Public School Publishing Co., 1926), p. 72. Ibid., p. 72. 7Harry Trusler, Essentials of School Law (Milwaukee: Bruce Publishing Co., 1927), 478 pp. 25 schools have in relatively few cases been held liable.8 Hollenback, in 1931, studied the subject of tort liability of school districts and recommended greater allowance of legal liability although he concluded that generally school 9 districts are not liable for torts. Clore made a similar study the following year.10 By 1932 Weltzin noted a change in the attitude of the courts toward limited recovery upon evidence of negligence and cited changes in California, New York, and Washington.11 In 1933 Newton Edwards classic school law textbook, The Courts and the Public Schools, ap— peared. It devoted two chapters motortliability and 12 recommended that common-law immunity be abrogated. A revised edition of this book appeared again in 1955.13 8Joachim Frederic Weltzin, The Legal Authority of the American Public School (Grand Forks, N. Dakota: The Midwest Book Concern, 1931), p. 145. Second edition appeared in 1932. 9Warren Hollenback, ”Tort Liability of School Districts as Shown by Court Decisions” (unpublished Master's thesis, University of Pittsburg, Pittsburg, 1931), 105 pp. lOJames Clore, Jr., ”The Legal Liability of the School District for Damages" (unpublished Doctor's thesis, Univer- sity of Southern California, Los Angeles, 1932), 224 pp. llJoachim Frederic Weltzin, "New Tendency in the Tort Liability of School Districts,” American School Board Journal, 84:52-53, March, 1932; 84:37-38, April, 1932; 84: 31-32, May, 1932; 84:39-40, June, 1932. 12Newton Edwards, The Courts and the Public Schools (Chicago: The University of Chicago Press, 1933), 591 pp. l3gpgg , 2nd. ed. 1955, pp. 550-563. 26 Actually the substance of Edwards' first book had appeared earlier in article form in professional Journals.lu A new venture to insure continuous reporting of legal developments in school law appeared in 1933 as M. M. Chambers undertook editing and publishing the Yearbook of School Lawwhich was published annually through the year of 1941.15 The Yearbook did not appear again until 1950 but has appeared annually since this date with Lee 0. Garber as editor.16 Dice studied the tort liability of individual employees and officers of school districts in 1937 and recommended that school districts accept liability for all school acci— dents and that school districts be required to carry liability insurance.17 In 1940, Rosenfield brought out his text, Liability for School Accidents,18 in which he consid— ered school non-liability of importance to school employees. 14Newton Edwards, ”Tort Liability of School Districts,” Elementary;School Journal, 30:34, September, 1929. 15M. M. Chambers (ed.), Yearbook of School Law (Published by editor, annual, 1933-1941). 16Lee 0. Garber, The Yearbook of School Law (Philiadelphia: The Author, annual,‘195045o; Danville,7111.: Interstate Printers and Publishers, Inc., annual, 1957-—.) l7Clifford o. Dice, "Tort Liabilit of Individual Em- ployees and Officers of School Districts‘ (unpublished Doctor's thesis, University of Southern California, Los Angeles, 1937), 305 PP- 18Harry N. Rosenfield, Liability for School Accidents (New York: Harper and Bros., 1940), p. 44. 27 This author felt that the increasing pressure to recover damages for injury accompanied by school non—liability will mean a 1arger number of suits against teachers, principals, and superintendents. A year later Poe studied school liability for injuries to pupils and recommended statutes similar to workmen‘s compensation granting relief for phys— ical education and athletic injuries regardless of negli- 19 In the same year, 1941, John Cavicchia gence or fault. studied some 300 tort cases throughout the United States and found that the courts almost always upheld the govern— 20 The Law and Public Education, mental immunity doctrine. a new textbook by Hamilton and Mort, also appeared in 1941 and discussed tort liability, giving various reasons for immunity of school districts; however, the authors did not believe that any of the reasons for school immunity were sound.21 Punke, in 1943, found that general principles concerning negligence in transportation were more hazy than in other fields.22 19Arthur Clayton Poe, ”School Liabilities for Injuries to Pupils” (unpublished Doctor's thesis, Teachers College, Columbia University, New York, 1941), 108 pp. 2OJohn Cavicchia, ”The Law of Torts as Applied to Public Schools” (unpublished Doctor's thesis, Rutgers University, New Brunswick, New Jersey, 1941), 287 pp. 21Robert R. Hamilton and Paul R. Mort, The Law and Public Education (Chicago: The Foundation Press, Inc., 1941), p. 261. 22Harold H. Punke, Law and Liability in Pupil Trans— portation (Chicago: The University of Chicago Press, 1942), 291 PP- 28 Previously Noble23 and Reeder24 had dealt with pupil trans- portation and liability insurance as it pertained to pupil transportation. In 1946 M. M. Chambers recommended an insurance system be set up to provide indemnity to persons injured through accidents due to negligence of public agencies.25 Ted J. Scatterfield studied supreme court decisions in the United States in 1949 and found that tort liability was imposed in New York as a matter of legal precedent, in California by express legislation, in Washington by law of a limited nature, in Oregon and Minnesota by statute but nullified by the courts, and in Connecticut, New Jersey, and New York by enactment of l'save-harmless statutes." This investigation concluded with the recommendation that legislation be passed in each state giving complete abroga- 26 tion of governmental non-liability. In the same year, 1949, Myron A. Hessee investigated the personal liability of school employees and concluded that the various states should change their laws to protect teachers from liability 23M. C. S. Noble, Jr., Pupil Transportation in the United States SScranton, Pennsylvania: International Text- book Co., 1940 , 541 pp. 2“Ward G. Reeder, The Administration of Pupil Trans— portation (Columbus, Ohio: The Educator's Press, 1939), 220 pp. 25M. M. Chambers and D. B. Updike, The Colleges and the Courts, 1941-1945 (Boston: Merrymount Press, 1946), 156 pp. 26 Ted J. Scatterfield, ”Legal Aspects of Tort 29 connected with their job or position.27 In 1950 Leo Doherty studied school bus insurance in the United States and found a great variation in practices in bus insurance including public liability and property damage coverage.28 Liability insurance has not often been the subject of comprehensive study. A comparison of insur- ance costs and insurance premiums was made in 1941 which showed that in the field of transportation insurance only one dollar is paid out by insurance companies for every eight dollars charged in premiums and that other liability insurance purchased by schools have only a 7.9 per cent loss ratio.29 Madaline Remmlein's School Law made its appearance in 1950. It did much to explain application of principles of Liability in School Districts as Indicated by Recent Court Decisions" (unpublished Doctor's thesis, Temple University, Philadelphia, 1949), p.89. 27Myron A. Hessee, "Personal Liability of Selected School District Employees and a Plan for Their Protection” (unpublished Doctor's thesis, University of Southern Calif- ornia, Los Angeles, 1949), 233 pp. 28Leo D. Doherty, ”School Transportation Insurance, Cost and Coverage" (unpublished Doctor's thesis, Teachers College, Columbia University, New York, 1950), 113 pp. 29An Investigation of Insurance Practices, Bulletin No. 9 (Washington, D. C.: The National Association of Public School Business Officials, 1941), 291 pp. 30 law and to bring legal procedure more clearly and fully within the school administrator's comprehension.3O This year, 1950, also found Edgar Fuller, after analyzing court decisions involving school tort liability, concluding that the solution to the problem of tort lia- bility was most difficult to achieve.31 The year 1951 found another publication in school law of a periodical nature entitled The Bi—weekly School Law Letter32 which continues to be published today under the title The National School Law Reporter.33 The author, Robert R. Hamilton, has warned of the danger of safety patrol 34 operation and the use of private automobiles for school uses.35 He feels that ”cracks are appearing in the old, rock-ribbed doctrine of immunity.”36 3OMadaline Kinter Remmlein, School Law (New York: Mc— Graw Hill Book Co., Inc., 1950), 376 pp. 31Edgar Fuller, ”Tort Liability of School Districts in the United States' (unpublished Doctor's thesis, Harvard University, Cambridge, Mass., 1950), 331 pp. 32Robert R. Hamilton, The Bi-Weekly School Law Letter (Larmie, Wyoming: The Author, 1951-195A)? 33Robert R. Hamilton, The National School Law Reporter (New London, Conn.: Arthur C. Croft Publications, Bi-Weekly, l955-- . 3U'The Bi-Weekly School Law Letter, v. 3, no. 1, March 5, 1953. 35The Bi-Weekly School Law Letter, v. 2, n. 25, January 31, 1953. 36The Bi—Weekly School Law Letter, v. 1, no. 1, March 1, 1951. 31 It was at this time that the United States Office of Education and the National Education Association began to show an increasing interest in the field of school law as evidenced by various publications and "research bulletins."37 In 1952 Marcel Guley studied the legal aspects of injuries in physical education and athletics and recommended that in view of increasing damage judgments it would be wise to take precautions and know the nature and extent of risks?8 At this time, 1952, Linn and Joyner brought forth their textbook, Insurance Practices in_School Administration, which analyzed various types of insurance problems and devoted one chapter each to general public liability insur- ance and automobile insurance.39 It should be noted that technical information on liability insurance is included in many texts in the field of insurance. In 1953 Johnson found that the records showed few lia- 40 bility suits filed against principals. Pinckney studied the liability of shop teachers for injuries in school 37Lee 0. Garber, The Yearbook of School Law, 1959 (Dan— ville, Ill.: The Interstate Printers and Publishers, 1959), pp. 168-169. 38Marcel Guley, ”The Legal Aspect of Injuries in Physical Education and Athletics" (unpublished Doctor's thesis, Syracuse University, Syracuse, 1953), 247 pp. 39Henry H. Linn and Schuyler C. Joyner, Insurance Prac- tices in School Administration (New York: The Ronald Press Company. 1952). pp- 152-275- finOJ. M. Johnson, ”The Legal Status of the Public School Princ pal in the United States" (unpublished Doctor‘s thesis, University of North Carolina, Chapel Hill, 1953), 152 pp. 32 and Remmlein authored her second textbook on school 41 shops, law entitled The Law_gf_Local Public School Administration, in which she discusses the liability of school personnel.u2 In 1954 John Hindle investigated the financial respon- sibilities for injuries of pupils of elementary and secondary schools and found the average cost per injury to be twelve to sixteen dollars and which, in most cases, were borne by the parent; nevertheless, it is pointed out that this ulti- mately represents a public loss.L‘L3 In 1955 Clark Spurlock reviewed decisions of the Federal Supreme Court and, although tort liability was not dealt with, concludes that court decisions imply possibly broad, federal regulatory powers and authority where acts of schools or school officials are brought into conflict with the rights of individuals.44 In 1957 Law and The School Business Manager was pub- lished which devoted one chapter to pupil transportation ulCharles w. Pinckney, "Liability of Shop Teachers and School Districts for Pupil Injuries in School Shops Resulting in Court Cases in the United States" (unpublished Doctor's ghesis, Pennsylvania State University, State College, 1953), 0 pp. 42Madaline Kinter Remmlein, The Law and Public School Administration (New York: McGraw-Hill Book Co., Inc., 1953), p. 239. ”3John H. Hindle, ”Financial Responsibilities for In- juries of Pupils of Public Elementary and Secondary Schools” (unpublished Doctor‘s thesis, Teachers College, Columbia University, New York, 1954), 211 pp. 1MClark Spurlock, Education and the Supreme Court (Urbana, Illinois: University of Illinois Press, 1955), p.4. 33 and another to tort liability. It presents a clear and concise review of tort liability of school districts and school personnel in the United States from the middle of the nineteenth century to date.45 In 1958 Dennis Burke analyzed corporal punishment cases in the United States and compared areas of the country and time periods from the viewpoint of number of cases and the nature of the verdicts but found no significant trends. In this same year Constantine investigated liability for injuries sustained in the transportation of public school pupils.47 In 1959 Dennis J. Kigin made a study of tort liability affecting shop teachers and made recommendations for avoiding accidents and litigation but concluded that a teacher who remains in his classroom, instructs his pupils in the proper use of tools, and maintains a constant safety program had little to fear in the way of liability.48 45Leo 0. Garber (ed.), Law and the School Business Manager (Danville, Illinois: Interstate Printers and Pub— lishers, Inc., 1957), pp. 171-217. 46Dennis P. Burke, ”A Study of Court Cases Resulting from Corporal Punishment in Public Schools" (unpublished Doctor's thesis, University of Pittsburgh, Pittsburgh, 1958). 47Gus A. Constantine, ”Legal Liability for Injuries Sustained in the Transportation of Public School Pupils" (unpublished Doctor's thesis, Duke University, Durham, N. C., 1958), 216 pp. 48Dennis John Kigin, ”Tort Liability Affecting Shop Teachers with Provisions for Avoiding Accidents and Liti- gation," Education Series, No. 74, v. 61, no. 1 (Columbia, Missouri: University of Missouri, 1960), 21 pp. (Based on Doctor's thesis of same title, 1959.) 34 In the same year Robert W. Schaerer investigated the tort liability status and liability insurance practices in the Indiana schools. He classified the states as: (1) ultra- liberal, where immunity has been waived; (2) ultra-conserva- tive, where immunity is upheld and purchase of liability insurance is prohibited; and (3) a compromise position, where immunity is upheld but liability insurance is permitted. Likewise the study showed that schools in Indiana purchase various forms of liability insurance but that many of them do not safeguard the injured party.49 The year 1959 brought forth another book on school law written by Robert Hamilton and Edmund Ruetter entitled Legal Aspects 9f_School Board Operation. One chapter is devoted to liability of school districts and board members.50 Gauerke, in 1959, presented a rather unique approach dealing with legal principles and common law as he relates the legal and ethical aspects of the work of school personnel.51 This author believes that in the past the "immunity rule" has lent "moral support" if not ”legal protection” to teachers in 49Robert N. Schaerer, ”The Tort Liability Status of Indiana Public Schools and the Current Liability Insurance Practices of Indiana Public School Corporation" (unpublished Doctor's thesis, Indiana University, Bloomington, Indiana, 1959). p. 274. 50Robert R. Hamilton and E. Edmund Reutter, Jr., Legal Aspects of School Board Operation (New York: Bureau of Pub- lications, Teachers College, Columbia University, 1958), pp. 177-193. 51Warren E. Gauerke, Legal and Ethical Responsibilities of School Personnel (Englewood Cliffs, New Jersey: Prentice- Hall, Inc., 1959), 302 pp. 35 their relationship to pupils.52 Volz, in this period, wrote concerning the liability of the superintendent of schools and declared that "any tort liability of the superintendent must be based on his own personal wrongdoing and not upon the wrongful acts of a subordinate."53 In 1961 Garber and Boyer discussed the liability of the school principal and emphasized planning and supervision to avoid tort liability.54 The survey of related studies would not be complete without mention of the many articles appearing in such pro— fessional journals as The American School Board Journal, Nation's Schools, School and Society, The Elementary School Journal, School Executive, and Safety Education. Rather than attempt to cite all the conclusions of the various research studies, the writer has chosen to devote the balance of this chapter to legal principles and liability hazards as an explanatory foundation for the study. Education and Our Court System Education a state function.--Education is not directly mentioned in the Federal Constitution. The authority for making the public school system a matter of state care is 52Ibid., p. 263. 53Marlin M. Volz, ”Personal Liability of the Superin- tendent,” Law and the School Superintendent, edited by Robegt L. Drury (Cincinnati: The w. H. Anderson Co., 1958), p. 2 0. 54Lee 0. Garber and Randall R. Boyer, ”Planning and Supervisory Responsibilities to Avoid Tort Liability,"ngw and the School Principal, edited by Reynolds C. Seitz (Cin— cinnati: The w. H. Anderson Co., 1961), pp. 69~90. 36 derived from the Tenth Amendment to the Constitution of the United States which reserves to the States the powers not delegated to the Federal Government by the Constitution.55 Conversely, the powers of the individual states are plenary except where denied by the Federal Constitution. It should be noted, however, that the Federal Government may possess broad potential authority over certain aspects of education for the limits of possible authority to control education growing out of the general welfare cause, civil rights, and freedom of speech and religion are far from clear.56 The courts throughout the United States have consis- tently held that school districts and their governing bodies are creatures of the legislature and that the State's authority over education is complete.57 The broad powers of the state have been described by the Michigan Supreme Court as follows: The legislative power,under the Constitution of the State, is as broad, comprehensive, absolute, and unlimited as that of the parliament of England, subject only to the Constitution of the United States and the restraints and limitations imposed by the people upon sugh power by the Constitution of the State itself.5 Federal law waives soverign immunity at the Federal level of government. This was accomplished gradually from *7 55United States Constitution. 56Spurlock, op. cit., pp. 2-3. 57Lee 0. Garber, Handbook of School Law (New London, Connecticut: Arthur C. Croft Publications, 1954), p. 3. 58Xgung_v. City of Ann Arbor, 267 Mich. 241. 37 1792 to 1946 when Congress passed Public Law number 601 of the Seventy-Ninth Congress, known as the "Legislative Re- organization Act of 1946,” of which Title IV is known as the "Federal Tort Claims Act."59 The soverign powers of the state and the complete authority of the state for the system of public schools making the school district an arm of state government gives school districts the same immunity from tort liability that the state government itself enjoys. Educational policy made by courts.--The state exer- cises its authority over education through the constitution, its statutes, and its judicial law. The legislative branch of government is responsible for declaring public policy regarding education, however, the courts through their decisions and opinions contribute greatly towards the sum total of public policy pertaining to education. Operation of the courts.--A court is an agency of government whose function is to decide cases or controversies between two parties, one of whom may be the government itself. In the United States this includes a Federal Court System superimposed over the system of State Courts, each with specific authority or jurisdiction. In general the courts may be classified on the basis of original jurisdiction or function of decision which divides 59Scatterfield, op. cit., p. 4. 38 our courts into those of trial and appellate functions. Pertinent to this study is the dual function of the appellate court which performs the function of hearing cases referred to it from lower courts and the function of providing auth— oritative public policy regarding questions of constitu- tional and statutory interpretation including declaration of policy where there is no written law to guide the court. In Michigan this court is known as the Supreme Court; in other states they may be known by other names and in some cases the courts at this level are divided so that the state may have an intermediate court and a court of last resort. A judicial interpretation is the origin of a legal principle and until it is overruled it serves as a prece- dent for subsequent court decisions. The practice of basing decisions before the court upon past judicial decisions is- known as the doctrine of "stare decisis" and is solidly implanted in judicial law. This principle is strongly adhered to within the same state or jurisdiction. Courts in other states are free to follow other courses of action; however, courts are often influenced by the weight of pre- vailing views. Tort Liability Liability is based on legal principles, the nature of which makes it impossible to predict in advance what is or what is not a cause of liability. Certainty is confirmed by facts which vary from one case to another; thus, the 39 base of liability must be legal principles from which is derived probability. The law of torts deals with private and civil wrongs arising independentofcontract, thus distinguishing this type of legal action iégfnthat of a criminal nature or for breach of contract.60 Today, fault is a condition of lia- bility, and the presumption is present, in law, that every person performs his duty; the burden of proving otherwise rests on the injured. Historically, the progress of the law of torts devel- oped gradually from strict liability, i.e. responsibility regardless of fault, in England and the United States during the seventeenth and eighteenth centuries, toward the prin— ciple of limiting liability in tort to ”fault as a condition of liability."61 This present philosophy of "fault as a basis for liability'l has its basis within the framework of individual rights holding that no one should be liable in the absence of fault and has a social aim of defining the standard of conduct and punishing dangerous conduct. Some authorities feel that this concept has now out- lived its usefulness and that liability imposed without "fault," with the burden of liability placed on those best 6OBy strict definition, the word ”tort” indicates all forms of wrongs; however, the law of torts applies only to that class of wrongs which are not crimes nor arising out of contract. See Henry Campbell Black, Black's Law Dictionary (fouggh edition; St. Paul, Minn.: West Publishing Co., 1951), p. l 0. 61William S. Holdsworth, History of English Law, vol.I (7th edition; London: Methuen and Co., Ltd., 1956), pp.446—453. 4O able to bear them, namely, society at large, would be more fitted to modern social conditions.62 Evidence that the trend is toward this concept of liability is provided by today's workmen's compensation laws. Legal principles.—-Although liability may be imposed for reasons other than negligence, in most cases of tort liability, fault is predicated on negligence. For this reason an understanding of negligence demands a predominant place in any consideration of school connected liability. Negligence, by popular usage, implies lack of due diligence or care. Court definitions of negligence vary but usually refer to the care which an ordinary prudent per- son would use under the circumstances in discharging the duties resting on him.63 Under today's laws certain essen- tial elements must be present to maintain a tort action, namely: (1) existence of legal duty from defendant to plaintiff, (2) breach of duty, and (3) damage as a proximate result. Foreseeability or knowledge of the peril which sub- sequently results in the injury is a prerequisite of negli— gence.64 Negligence may be active by consisting of doing something one should not have done or passive through failure to do something which he should have done under the Circum- stances. 62William Lloyd Prosser, Handbook of the Law of Torts (St. Paul, Minn.: West Publishing Co.,*1951), p. 426. 6338 Am. Jur. 2. 6l‘LProsser, op. cit., p. 175. 41 One's negligence must be the direct cause of an injury to maintain legal action and the plaintiff himself must be 65 free from fault to sustain his action. ”The mere fact that an accident happened and that plaintiff was injured neither proves negligence nor raises a presumption thereof."66 The yardstick for measuring the degree of care is the ordinary prudent person; it is applied by the jury or judge to the circumstances with consideration to the duty owed the injured. Thus, though the standard of conduct is ordinary prudence, a second essential of negligence (the duty owed the injured) must be accorded due consideration especially when considering the negligence of professional persons as teachers in their role in the school system in charge of young and immature students. Poe pointed out the need for greater caution in pro- tecting young children than for adults,67 and Hamilton advises that teachers must take steps to safeguard pupils from injury because the teacher, ”in loco parentis,' acts the part of the lawful parent.68 65Brown v. Gilchrist, 80 Mich. 56. 66 Watrous v. Connoer, 266 Mich. 397. 67Arthur Clayton Poe, School Liability for Injuries to Pupils, Contributions to Education No. 828 (New York: Bureau of Publications, Teachers College, Columbia Univer- sity, 1941), p. 32. 68Robert R. Hamilton, The Bi—Weekly School Law Letter (Laramie, Wyoming: The author, 1954), vol. 4, no. 14} 42 Some writers feel that contributory negligence on the. part of the injured should not bar recovery of damages and suggest an alternative theory of "comparative negligence" whereby damages would be divided on a basis of comparative fault or apportioned in accordance with each actor's degree of negligence.69 In cases where the defendant has exclusive control over the danger the doctrine of ”res ipsa loquitur" is ap— plicable. This doctrine places upon the defendant the burden of proving that he was not negligence. Under this category comes liability connected with the use of fire— arms, certain types of machinery, and the operation of steamboilers.7O Nuisance.-—There is much confusion in the use of the term "nuisance” especially where attempts have been made to distinguish between ngeligence and nuisance. Neverthe- less, nuisance is a recognized cause of liability. Nuisance is defined by Black as: That which annoys and disturbs one in possession of property. Class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, either real or personal, or from his own improper, indecent, or unlawful 69Roscoe Pound, Jurisprudence (St. Paul, Minnesota: West Publishing Co., 1959), Vol. 5, Chapter 32. 7OMadaline Kinter Remmlein, ”Tort Liability of School Districts," Law and the School Business Manager, edited by Lee 0. Garber (Danville, Illinois: Interstate Printers and Publishers, Inc., 1957), p. 203. 43 personal conduct working an injury on the right of another.71 Hamilton finds it entirely impossible to determine abstractly what constitutes nuisance even though the courts have seized upon the term to allow recovery and finds use of the term a kind of sUbstitute for an analysis of the problem.72 Hindle likewise found it generally impossible to determine in advance what circumstances of any particular case might or might not be declared a nuisance by any par- t.73 ticular cour Trespass.--This term is likewise sometimes recognized as a cause of liability. It is defined as:‘ Form of action, at the common law, which lies for redress in the shape of money damages for an unlawful injury done to the plaintiff, in respect either to his person, property, or rights by the immediate force and violence of the defendant.74 Violence is actual or implied in trespass cases and involves injury of another‘s person or property. Governmental Immunity Historically, common law doctrine of governmental immunity can be traced from the theory of the Divine Right of Kings which held that the ”King could do no wrong.” 71Black, op. cit., p. 1214. 72Robert R. Hamilton, The National School Law Reporter (New6London, Conn.: Arthur C. Croft Co., 1956), Vol. 6, pp. 73-7 . 73Hindle, op. cit., p. 58 7”Black, op. cit.,p.l674. 44 The concept, which holds that the government cannot be sued without consent, came down to today's society as part of common law which governs where there is lack of statutes covering matters brought before the courts. Today the time honored doctrine of immunity is predicated on the theory that the State is sovereign and cannot be sued without con- sent.75 Reasons given for the support of this rule of non- liability include the non-presence of the relationship of master and servant, the lack of provision in the laws to pay claims, the prohibitive financial cost, and the fact that a public function is being performed without financial gain.76 Since the doctrine of school district immunity is based on common law, it can be abrogated or modified by statute, judicial opinion, or both. In general the courts feel that any changes in the doctrine are a legislative responsibility as the courts in carrying out their functions generally recognize that they are one of the three depart— ments of government and attempt not to take any action that might be considered interference with the legislative func- tion or of a legislative nature.77 75Ruling Case Law, Vol. xx1v, p. 60. 76E. E. Fuller, ”Reasons Given by Courts for School District Immunity,” American School Board Journal, 103: 23-25, November, 1941. 77Jones v. Grand Ledge Public Schools, 84 N. W. (2d) 327 (MicHTYf' 45 Immunity of school districts from tort liability has its basis in the legal nature of the system of public schools in which education as a state function plays a vital and indispensable part.78 The courts have at various times referred to school districts as agencies of the state, municipal corporations, and quasi-municipal corporations. The corporate character of Michigan school districts has been defined by the Michigan Supreme Court as follows: Although invested with certain corporate charac— teristics to more efficiently serve the purpose for which they are created, school districts are not municipalities, nor public corporations in the full sense, but because of their very restricted powers are distinguished and recognized as quasi corporations.79 Duties Not Spelled Out In Law The standard of conduct of ordinary prudence and the duty owed the injured have been referred to;80 the latter essential appearing to modify the standard of care expected depending on the relationship between the party injured and the party at fault. Reasons for logically expecting that the obligation and duty owed by administrators and teachers would be at a high level include: 1. A high standard of conduct is generally expected of professional employees. '8 7 Supra, DP- 35‘37- 7 a . '9iyp1011 v Board of Education, 191 Mich. 339- 8 OSupra, p. 40. 46 2. The professional employee occupies the position, ”in loco parentis” (as a substitute parent), in handling others' children. 3. Schools, for the most part, deal with minors, recognized in court as having certain standards of behavior appropriate to their age. 4. Teachers and administrators as members of a profession are subject to codes of ethics setting forth principles of professional responsibility and rules of behavior. Liability Hazards Much of the literature in the area of tort liability discusses what is and what is not likely to be considered negligent behavior. It is the purpose of this section to merely point out the areas of hazards as seen by the various writers in the field. Remmlein points out legal pitfalls that have been neglected in the current emphasis upon the participation of parents in school affairs and cites possible dangers in the use of resource persons, in the use of parents as chap- erones on field trips, and the discussion of disciplinary 81 problems in open discussion with parent groups. McCann emphasized certain procedures such as inspection of premises, well formulated rules and procedures, assignment of competent 81Madaline Kinter Remmlein, ”A Lawyer Looks at Parent Participation," The National Elementary Principal, 37:37-44, September, 1957. (Bul. of Dept. of Elementary School Prin- cipals, National Education Association.) 47 teachers in view of hazards, and inspection of safety drills as protection against liability.82 Edwards pointed out that the teacher conforms to law by conforming to established patterns of behavior, but may unwittingly risk personal liability or jeopardize the position of the school.83 Steege made recommendations based on the review of California decisions pointing out the need for safety regulations and precautions in shops, the need to exercise care in science classes, and the value of careful planning of rules and uniform enforcement.84 Gausman,85 Tischendorf,86 Philo,87 and Pickney88 deal with liability for shop teachers and school shops. 82Lloyd E. McCann, "Legal Aspects of School Super- vision,” The American School Board Journal, 132:45-46, June, 1956. 83Walter L. Edwards, "Teacher and School Law," The Nation's Schools, 52:39-41, December, 1953. 8“Thomas W. Steege, ”Negligence in Schools," The American School Board Journal, 132:47-48, May, 1956. 85Chester A. Gausman, ”Legal Aspects of Shop Acci— dents," Industrial Arts and Vocational Education, 44:207- 211, September, 1955. 86E. w. Tischendorf, ”Accident Liability of Shop Teachers,” Safety Education, 30:1-3, February, 1951. 87H. E. Philo, ”Are Shop Teachers Liable?," Safety Education, 30:13-14, May, 1951. 88Charles w. Pinckney, "Liability of Shop Teachers and School Districts for Pupil Injuries in School Shops Resulting in Court Cases in the United States" (unpublished Doctor's ghesis, Pennsylvania State University, University Park, 1953), 0 pp. 48 Leibee,89 Garber,90 Carlson,91 Doscher and Nelson92 have studied liability connected with physical education and athletic programs and alert school personnel to the circum- stances which might lead to liability for negligence; _ The school safety patrolghgg bggn a SUbject of dis- agreement with Hamilton93 saying the padtol should be dis- continued because of liability to personnel and Remmleingu and Gauerke95 supporting the continued use of school patrols. 89Howard C. Leibee, Liability for Accidents in Physical Education, Athletics, Recreation (Ann Arbor, Michigan: Univer— sity of Michigan Press, 1952), 71 pp. 90Lee 0. Garber, ”The Case of the Negligent Coach," The Nation's Schools, 59:77-79, May, 1957. 91Gordon T. Carlson, "I'll Be Suing You, Coach," The School Executive, 76:76-78, April, 1957. 92Nathan Doscher and Nelson Walke, ”The Status of Liability for School Accidents and Its Relationship to the Health Program,” Research Quarterly, 23:280—294, October, 1952. 93Bi-Weekly . . .,o . cit., vol. 3, no. 1, March, 1953. 4 9 Madaline Kinter Remmlein, ”School Safety Patrols Defended,” The American School Board Journal, 134:54, June, 1957- 95Warren E. Gauerke, "School Safety Patrols and The Law," The School Executive, 77:68-72, December, 1957. 7 u . / \ 49 Hamilton,96 Butsch,97 Garber, 98 and Seitz99 reviewed the law of libel and slander and the use of privileged com- munications by teachers as a liability hazard. Punke discussed the possible liability of board members and teachers for the wrongful exclusion of pupils but pointed out that the courts usually held that there is no personal liability for damages in such cases.100 Hamilton has repeatedly warned of the dangers to school personnel and school districts where school personnel 101 use their private cars for school purposes. Sumption and Garber see dangers in sending pupils on errands and find a need for greater supervision and planning of field trips.102 96Bi-Weekly . . .,o .cit., vol. 1, no. 26, February, 1952. 97Russell Butsch, ”The Law of Libel and Slander as it Affects the Teacher,” The Elementary School Journal, 31: 44-51, September, 1930. 98Garber, Handbook of School Law, op. cit., p. 92. 9Reynolds C. Seitz, ”The Law of Privileged Communi— cations as it Affects the Work and Responsibility of the Principal,” Law and the School Principal (Cincinnati: The W. H. Anderson Co., 1961), pp. 151—165. lOOHarold H. Punke, ”Exclusion of Pupils from Public Schools,” The Bulletin of the National Association of Secondary-School Principals, 42:41-59, September, 1958. 101 1952. 102Lee 0. Garber, ”Field Trips and Excursions,” Thg Nation's Schools, 56:82-85, September, 1955; Merle R. Sump; tion, 1TReSponsibility of Principal for Planning and Super- vision in Connection with Field Trips and Errands,” Law and the School Principal, edited by Reynolds C. Seitz (Cincinnati: The W. H. Anderson Co., 1961), pp. 137-147. Bi-Weekly . . ., op. cit., vol. 4, no. 25, January, 50 Garber and Boyer point out the problems of supervision peculiar to the modern high school with its expanded program, before and after school activities, extra—curricular activi- ties, and supervision of common areas where no particular teacher is assigned direct responsibility for supervision.103 The hazards warned of by the various writers mentioned above is not complete but do point out the areas of most concern in the literature, namely, those found in the shops, physical education and athletics, science classes, extra curricular activities and activities where the pupil is not under the direct supervision of a classroom teacher. Policies, rules, and regulations have been emphasized both in preventing accident and in proving non-negligence in court. Summary This chapter surveys prior research, related studies, and literature in the area of tort liability. Generally research in this field has approached the problem of lia- bility from a study of statutes, judicial opinion, and court cases. This approach has been effective in identifying liability hazards, establishing general awareness of lia— bility, and making available to educators summarizations and comparisons of laws and judicial opinion pertaining to liability in the various states in general. lO 3Garber and Boyer, op. cit., pp. 69-90. 51 The law of torts, historically, progressed from strict liability during the seventeenth and eighteenth centuries to present principles of liability based on fault. Present law implies a social aim of defining and maintaining a standard of conduct; a concept which some authorities feel has cut- lived its usefulness. The doctrine of governmental immunity is based on com— mon law and can be abrogated or modified by statute, judicial opinion, or both. Immunity of school districts from tort liability has its basis in the legal nature of the system of public school in which education is viewed as a state function and school districts as agencies of the state. Liability is based on legal principles, the nature of which makes it impossible to predict in advance what is or is not a cause of liability. Liability is generally based on negligence implying a lack of due diligence or care. The degree of care expected is defined in terms of the ordinary prudent person and the duty owed the injured. The liability hazards warned of by the various writers in the field generally include those found in the shops, physical education classes, athletic programs, science classes, extra—curricular activities, and related school activities where the pupil is not under the direct, close supervision of a classroom teacher. Policies, rules, and regulations have been emphasized as a means of preventing 52 accident, showing good intentions, establishing that ade- quate standards are enforced, demonstrating that proper precautions are taken, and in proving non—negligence in court. CHAPTER III STATUS OF LIABILITY IN MICHIGAN AND OTHER SELECTED STATES It is the purpose of this chapter to review the status of tort liability and governmental immunity as it applies to Michigan School districts and school employees, and to briefly consider and take note of the diversity and contrast of statutes and judicial opinion in selected states, states which have uncommon modifications or dis- similarity of law in the area of tort liability. Liability Status of Michigan Public Schools For many years Michigan school districts have operated under the protection of the common law rule of governmental immunity which holds that municipal corporations are not liable for injuries to the public unless such liability is specifically created by statute. The Michigan statutes do not specifically abrogate the "immunity concept" nor do they denote the granting of immunity. Generally it is the absence of state statutes regarding school district liabil- ity that makes the common law principle of governmental immunity applicable to school districts. This has been the 53 54 case in Michigan; however, statutes have been passed and repealed leaving the intent of the Legislature regarding school non-liability in doubt. Exceptions to immunity.—-There are two exceptions to the general rule of school district immunity from tort lia- bility in Michigan. In three instances, including one act repealed, the Michigan Legislature has enacted laws granting permission for liability suits to be brought against school districts. In 1943 the State waived its right to immunity for the torts of its officers and employees and consented to have 1 In its liability determined without governmental immunity. 1945 the legislature withdrew such waiver and reasserted the right of the state to invoke the doctrine of governmental immunity.2 The legislature at this time did forbid the use of governmental immunity in the defense of cases arising through the use of school buses and school owned vehicles and authorized payment of premiums on insurance to protect both the school district and its employees from such liability. .The statute reads: Section 1. In any civil action brought against a political subdivision of the state of Michigan, in- cluding all municipal corporations, to recover damages resulting from the negligent operation by any officer, agent or employee of such political subdivision, of a 1Court of Claims Act, Act, 237, Public Acts 1943, p.390. 2Act 87, Public Acts of 1945, p. 84. 55 motor vehicle of which said political subdivision is owner as such term is defined by Act. No. 302 of the Public Acts of 1915, as amended, the fact that such political subdivision was in the ownership of such vehicle engaged in a governmental function shall not be a defense to such action. Section 2. Premiums upon any insurance policy procured to protect any political subdivision of this state or any municipal corporation or any officer, agent or employee thereof against loss from liability resulting under the provisions of this act may be paid out of any moneys available to such subdivision or municipal corporation. In 1951 school districts and other municipal corpor— ations came under the provisions of the Workmen's Compensa- tion Act providing that employers are liable to suit on the part of employees while performing the duties of their employment.“ School district immunity upheld in court.--The first liability case against a school district to appear before the Michigan Supreme Court was the case of Ferris v. Board of Education in 1899.5 In this case the landlord of property adjoining the school had slipped on ice that had fallen from the school house roof. The trial court ruled that the school, being a municipal corporation, could not be held liable under the common law principle of immunity. Upon appeal the Supreme Court ordered the school district to pay damages 3State of Michigan, General School Laws (1959 rev.), p. 388; Act. 127, Public Acts of 1945, p. 132. 4 Act 151, Public Acts of 1951. 5Ferris v. Detroit Board of Education, 122 Mich. 315. 56 and contended that, although a municipal corporation could not be held liable for negligence under the common law, where the injury was the result of trespass it was liable whether acting in a public or private capacity. This case is referred to in the literature of school law under nuisance exceptions Since such exceptions to governmental immunity have been made by the courts in other states.6 The ruling in this case finds little use in the normal operation of schools for it neither defines clearly what constitutes nuisance or trespass nor lends itself to situ— ations which might normally arise in the every day operation of schools. In 1905 the Supreme Court declared a school district was a governmental agency and not liable for injury to an employee whose injury was caused by defective appliances furnished through the negligence of the agents of the Board of Education.7 This type of injury would now be covered under workmen's compensation. Public policy on school immunity was not clearly set forth until 1916 when, in a precedent setting case, school districts were declared a governmental agency and in their 8 quasi-corporate capacity were exempt from liability. 6E. Edmund Reutter, Jr., "Tort Liability of the School District," The American School Board Journal, 136:28—30, March, 1958. 7Whitehead v. Detroit Board of Education, 139 Mich. 490. 8Daniels v. Board of Education of City of Grand Rapids, et al., 191 Mich. 339. 57 The court added that this ruling was made because the state had not granted in the statutes the right to sue for such negligence. The Case, Daniels v. Board of Education of the City of Grand Rapids, ep_al., also established that school board members were not liable, as the school district itself was not liable. The suit was for damages for severe in- juries sustained by an eight-year-old boy who fell over a thirty-inch banister to the floor eighteen feet below. It should be noted also that the court at this time refused to recognize a distinction between torts committed through the maintenance of a nuisance and other torts. Thus the principle was established to deny recovery against school districts in all tort cases. The third case of school district liability did not make its appearance until 1942. In this case, Daszkiewicz v. Detroit Board of Education, the Court again thoroughly discussed the rules and principles of law governing the liability of school districts and declared: The law has long been settled in this State that, in the absence of a statute creating liability, neither a school district nor the board of education representing the district can be held liable for in- juries or damages caused by the negligence of its officers, agents, or employees while in the performance of their duties, because they, in furthering the pur- poses of education, are in the exercise of a public or government function.9 In this case the question was raised as to whether the school district might not be engaged in a proprietary 9Daszkiewicz v. Detroit Board of Education, 301 Mich. 222. 58 function rather than a governmental function since the in- jury complained of was sustained by a student paying tuition fees.10 The court ruled that agencies when perforndng a governmental function did not lose their immunity from liability merely because an income was derived therefrom, provided the income was incidental to the main purpose.11 The year 1949 found the Michigan Supreme Court with a differing view of school district liability representing a departure from complete governmental immunity of school districts. The departure is expressed most strongly in dissenting opinion rather than in the verdict handed down.12 The Watson v. School District of the City of Bay City appeared before the Supreme Court in 1949.13 In this case the administrator of the estate of a fifteen-year—old girl sued the school district for damages alleging that the negligence of the district caused the child's death. The child, in company with other children, attended a high school night football game. The girl paid admission to see the game and left a few minutes before the end of the game. loProprietary function is a recognized exception to the application Of the theory of governmental immunity in a few states. llDaszkiewicz v. Detroit Board of Education, op. cit. l2Watson v. School District of Bay City, 324 Mich. 1; Richards v. School District of the City of Birmingham, 348 MiCho E900 ' l3Watson v. School District of Bay City, op. cit. 59 A ramp protected by an 18 inch concrete wall extended from the basement of the high school warehouse building to ground level. The girl in returning to her car fell over the wall and into the ramp. She suffered paralysis from which she died eight months later. In the trial court the jury awarded the administrator $10,000 in damages, however, the circuit judge, on motion of the defendant, entered judgment for the defendant notwith- standing the jury verdict, holding that the school district was immune from liability as a matter of law. Upon appeal to the Supreme Court the lower court's judgment was sustained by an evenly divided Court, four Justices being for reversal and four Justices for sustaining the judgment of the lower court. Since it requires a majority to reverse the action of a lower court, immunity was upheld by the court. The last school liability case to appear before the Supreme Court (as of the date the interviews were conducted, summer of 1961) was the Richards v. School District of the 14 City of Birmingham case. The incident out of which the suit arose occurred in 1948, a year before the Watson-Bay City Case was settled, but did not make its appearance on the public scene until eight years later. During pre-game warming—up exercises at a football game scheduled between Royal Oak and Birmingham high schools, 14Richards v. School District of the City of Birming— ham, op. cit. 60 a part of the crowd in the stands near the players began to move rhythmicalLyback and forth in unison with the players. The section of bleachers gave way and collapsed, folding sideways, causing the adjoining section of bleachers also to collapse. The plaintiff, seated in the bleacher section whose collapse was caused by the side-ways movement of the adjoining bleacher section, suffered injury and as a result sued the Birmingham school district and the manufacturer of the bleachers for damages. The plaintiff was a dentist and his injury was so severe that he could no longer practice dentistry. The jury in the trial court was instructed to return a.verdictbased on negligence, proximate cause and contri- butory negligence. The jury found for the plaintiff and awarded damages in the amount of $45,000. The defense attorneys then asked the court for a judgment of ”no cause for action" notwithstanding the general verdict. The ver- dict was set aside on the theory that the school activity was a governmental function. Upon appeal the plaintiff contended that the trial "complete and absolute im- court erred in its ruling on munity” by failing to consider the distinction between governmental and proprietary function. The defendant con- tended that the facts relating to the distinction between proprietary and governmental functions were properly tried and that the theory of the law whereby governmental agencies 61 lose their immunity while engaged in a proprietary function did not apply to school districts. In a lengthy explanation the Supreme Court by a five to two vote upheld the trial court. Garber's review of the case concluded that the court appeared to have reasoned that because a district has only limited authority every- thing it does is of a governmental nature and that the decision was in line with the majority of decisions in this field.15 Hamilton reported that the Court held that the "immunity rule” protected the district and that one new point was made; namely, ”That all acts of school districts are governmental and that proprietary acts are really only one Class of governmental acts.”l6 On the other hand, some people viewed this decision as a break in the application of the "immunity doctrine” and from the dissenting opinion found reasons why school districts should insure against liability.l7 Laurence Smith, special counsel to the Michigan Association of Insur- ance Agents, implied that the controversy was resolved on the inconsistency of verdicts and that the question of immunity was not answered and, further, that the real sig- nificance of the decision was that there seemed to be general 15Lee 0. Garber, ”Abate That Fire Hazard,” Nation's Schools, 63:57-58, February, 1959. 16Hamilton, The National School Law Reporter, op. cit., 7:93, February, 1958. l7Hildebrand, op. cit., July, 1957. 62 agreement by five Justices that immunity does not apply if a proprietary function is involved.18 To the author it appears equally significant that three of the five Justices cited did not think that a proprietary function was involved. Nevertheless the dissenting opinion written by Justice Edwards citing the injustice of the immunity doc- trine and quoting a bitterly worded attack on governmental immunity by Justice Wolfe of the Bingham case in Utah indicate the strong feeling of the courts against applying the theory whereby the state is permitted to shield itself behind governmental immunity.19 Extracts from the Birmingham case record best illus- trate the bitter feeling against governmental immunity, e.g., History would tell usthat the doctrine, "The king can do no wrong," died at Runnymede in 1215. Yet in the court which tried this case the legal ghost of that doctrine strode forth and struck down a jury award of damages to an Oakland county dentist seriously injured at a Thanksgiving Day football game. . . . We cannot concur with turning the clock back from such progress as has already been made toward allowing damages for governmental wrongs. I admit that the legislature could and should abolish or modify the doctrine[of immunity]. . . we still have control of a rule or doctrine because it was judge made and developed, we may act . . . I do not think it conscionable for us not to lift our hand when to do so would bring 288 law up to date and furnish remedies long overdue. 18 v. *— vw Ibid., citing opinion of Laurence D. Smith. l9Bin ham v. Board of Education of Ogden City, 223 P. (2d) 432T?” ah . , 20Richards v. School District of the City of Birming- ham, qp. cit. I - II 63 In 1958 Attorney General Paul Adams issued an opinion to the Department of Public Instruction stating that school districts are notliable for students injured in athletics. However, with the opinion was a warning to give consider- ation to the vigorous dissenting opinion in the Birmingham case as being indicative of the trend toward amelioration of the harshness of governmental immunity and that it was probable that in some future case the doctrine of govern- mental immunity will not be upheld.21 Immunity overruled in non-school cases.—-The trend in Michigan toward greater liability is shown by recent Supreme Court decisions handed down against hospitals and local units of government. It should be noted that a fund- amental difference exists between school districts as quasi- corporations and municipal corporations proper. Municipali- ties are not agents of the state except when utilized by the state for the performance of governmental functions. The dual function of municipalities has been spelled out in the court as two capacities, one governmental and the other quasi-private.22 In 1958 the Supreme Court appeared to set a new precedent when it declared that a township was liable when 21Dept. of Public Instruction, News of the Week, XXVI, no. 10 (November 7, 1958). 22§£§y§p§_v. City of Muskegon, 111 Mich. 72. 64 exercising a proprietary function and held a township liable for damages when it rented their township hall for a nominal 23 This might be interpreted as a warning to school fee. districts that renting their facilities could be considered of a proprietary nature. In 1960 another step was taken toward limiting the application of the immunity doctrine when a decision was handed down abrogating the rule of law which allowed charitable non-profit hospitals the protection of immunity from damage suits by patients.24 In decisions handed down in September of 1961 the high court appeared to have abrogated governmental immunity completely as it applied to municipalities. In one case, Williams v. City of Detroit, the court by a five to three vote declared: ”We eliminate from the case law of Michigan an ancient rule inherited from the days of absolute monarchy which has been productive of great injustice in the courts."25 In the possible future application of this new doctrine four Justices said the decision should apply to all govern- ments from the state on down, one Justice specified only municipalities, and three voted against removal of govern— mental immunity.26 23Dohm v. Township of Acme, 354 Mich. 447. 24§§§k§r_v. Port Huron Hospital, 361 Mich. 1. 25Williams v. City of Detroit, 364 Mich. 231. 26 Ibid. 65 On the same date, September 1961, the University of Michigan Hospital lost its immunity when the University of Michigan Regents took out liability insurance.27 It should be noted that the Williams case was not decided in favor of the plaintiff because of past immunity, however, the court indicated that the judicial doctrine of governmental immunity from ordinary torts no longer existed in Michigan.28 A second case was dismissed by the Supreme Court in September of 1961 against the City of Detroit since the injury complained of occurred prior to September 22, 1961-- the date of the Williams case.29 In December of 1961 the question of immunity again came before the Court.30 In a split decision the Court again appeared to invoke the principle of governmental im- munity. In this case, McDowell v. Micnigan Highway Com- missioner, claimufor damages was filed in the Court of Claims and dismissed by them indicating immunity of State Commission from liability. The majority opinion held that the legislature had recognized its authority over the sovereign immunity rule by abolishing the rule as to actions 27Christie v. University Regents, 36 Mich. 202. 28 Williams v. City of Detroit, 364 Mich. 231. 29Wardlow v. City of Detroit, 364 Mich. 291. 3OMcDowell vs. Michigan Highway Commissioner, 365 Mich. 268. 66 31 had repealed against the State in the Court of Claims; Sec. 24 of the Court of Claims Act,32 and thus the State again became immune from liability claims based on tort. In the words of the Court: "So far as the State itself is concerned, the doctrine of sovereign immunity as it presently exists in Michigan is a creature of the legisla- ture, re-established by the legislature, and further modified by the legislature."33 The last case against a school district (at date of writing) was handed down on March 19, 1962.3LL In this case a boy was injured as a result of stepping into a hole created by a school building construction company. Actions were brought against con— tractors constructing new buildings and against the school district. The school district used defense of governmental immunity. Plaintiffs admitted that the district was exer- cising a governmental function but contended that the district waived its immunity by purchasing a policy of general liability insurance. Again the court distinguished between the ”King Can Do No Harm” edition of governmental immunity and the principle that immunity was established by the legislature; a principle established in the McDowell case. The majority opinion held that the doctrine of 31Act 237, Public Acts 1943, p. 390. 32 Act 87, Public Acts 1945, p. 84. 33McDowell v. Mich. Highway Commissioner, 365 Mich.268. 340111e Lee Sayers v. School District No. 1 fr., Argen- tine and Deerfield Townshipsy Genessee and Livingston Counties and Wolf Lumber Company, 366 Mich. 217. 67 governmental immunity was established by the Legislature in 1945 and could not be abrogated by the Court. Dissenting opinion did not agree that the statutes passed in 1945 indicated legislative intent to reestablish the doctrine of immunity. However, dissenting opinion admitted that the McDowell and Sayers cases restored all of the former horrors of common law rule of governmental immunity to full bloom.35 In answer to the charge that the purchase of liability insurance constitutes a waiver of the defense of governmental immunity the Court held that it did not and cited a prior case36 which held that the Court is not justified in per- mitting a jury to know whether a School district carries insurance. Status of immunity atypresent.--The prevailing situ- ation, at the time of this study, was a trend definitely toward a more liberal attitude in favor of the injured party by the Court. Recent cases had given the courts trouble creating a general situation of unsettled confusion with no assurance that the next case tried would not estab- lish a new rule of non-immunity of school districts from tort liability. The new rule of law abrogating governmental immunity for municipalities appearing at the completion of 35Ibid. 6 3 Harper v. Bushhouse, 254 Mich. 18. 68 the study made the demise of governmental immunity in Michi— gan very probable. The last two cases, the McDowell and Sayer cases, appear to restore governmental immunity on a new principle, immunity created by legislative intent. The question regarding the effect of liability insur— ance on court cases of liability long unanswered in Michigan, was answered indicating that such insurance would not waive school immunity. Liability of School Board Members It is the general rule that an officer of a school district is not personally liable for any loss or injury resulting from an act within the line of his duty or the scope of his authority, unless, in performing an act, he assumes to act in his individual capacity rather than as an official of the school district.37 A few courts have dis- tinguished between the presence or absence of evidence indicating performance of duties in good faith, however, generally the officer will not be held liable so long as the official act is within the jurisdiction of the officer per- forming it. In some states a distinction has been made between discretionary and ministerial acts of the school district. Ministerial type powers are those which neither permit nor require the exercise of subjective judgment by the board, while discretionary acts involve the considered 37Corpus Juris, Vol. 56 (Brooklyn: American Law Book Company, l932),pp. 342'344- . 69 judgment of the board in determining the manner or degree in which one of its powers or responsibilitis is to be exer- cised.38 The major portion of a local board's authority is of a discretionary nature. Although liability connected with the non-performance of ministerial acts may be a possi- ble hazard in some states, Michigan has not made this dis- tinction and has considered school officers as officers of the state and having only such powers as the statutes expressly or impliedly granted.39 There is complete accept- ance of the doctrine of the non-liability of school officers for their acts of negligence.)‘'0 It, of course, follows that the possible liability of the board of education as a corporate body and branch of state government is essentially the same as the possible liability of the school district previously discussed, sppra, which concluded that the courts Show a strong tendency in favor of the injured party. Liability of School Employees School employees may be held 1iable.——Though statutes and judicial interpretations pertaining to school district liability do vary from state to state, the courts are 38Stephen F. Roach, "Abuse of School Boards' Discretion- ary Authority," The American School Board Journal, 138:67-71, August, 1959. 39People ex. rel. Tibbals v. Board of Education of Port Huron, 39 Mich. 635; Foster v. Board of Education of School District No. 10 Delta Township, Eaton County, 326 Mich. 272. uoWall v. Eastman, l Mich. 268; Daniels v. Board of Education of City of Grand Rapids, et al., 191 Mich. 339. 70 universally agreed that the cloak of immunity protecting school districts from tort liability does not offer pro- tection to the school employee against such hazards.“1 In 1937 the Michigan Supreme Court ruled that teachers could be liable when they declared: In the faithful discharge of . . . duties, the teacher is bound to use reasonable care, tested in the light of the existing relationship. If,through negligence,the teacher is guilty of a breach of such duty and in consequence thereof a pupil suffers injury, liability results. It is not essential to such lia- bility that the teacher's negligenca should be so extreme as to be wanton and wilful. 2 Bolmeier expresses the opinion that governmental immunity to liability by school districts may actually impose upon school personnel a greater risk of being sued since it is logical to expect the injured to seek recovery from those who are liable.43 Gauerke, on the other hand, feels that the ”immunity rule" has lent "moral support” if not ”legal protection” to teachers in their relationship to pupils.uu In a legal sense, the school employee may, in fact, have less protection against the hazards of liability than an ordinary person in private employment, since many employees in our society have some protection under the legal doctrine “lEdward C. Bolmeier, "Tort Liability of School Person- nel," The American School Board Journal, l36:30-32,March,1958. “QGaincott v. Davis, 281 Mich. 515. 43Bolmeier, loc. cit. MLWarren E. Gauerke, Legal and Ethical Responsibilities of School Personnel (Englewood Cliffs, New Jersey: Prentice- Hall, Inc., 1959), p. 263. 71 of "respondeat superior,” viz., that an employer is respon- sible for the negligence of an employee when the negligence arises in the course of his employment or in the furtherance of his employer's business. It has been held repeatedly that this principle of law does not apply to employees working for the public schools.45 Scatterfield in his study of tort liability observed that although the courts generally held that teachers were employees of the local school district, that in most states, the courts treated the teacher as an independent contractor, liable for any injury which may result from his negligent acts.46 It should be noted that liability of individuals deals with negligence based on legal principles of foreseeability of injury, duty owed the injured, conduct of the reasonably prudent man, and proximate cause. Negligence is not easily proven in court. ”The mere fact that an accident happened and one that was unfortunate,does not render the defendant liable."“7 In the case of McDonell v. Brozo suit was brought against a teacher, a principal, and a gymnasium attendant for injuries to a pedestrian which occurred on a public uBNewton Edwards, The Courts and the Public Schools (Chicago: The University of Chicago Press, 1955), p. 421. l'5Ted J. Scatterfield, ”Legal Aspects of Tort Liability in School Districts as Indicated by Recent Court Decisions" (unpublished Doctor's thesis, Temple University, Philadelphia, 1949): P. 2. 47Gaincott v. Davis, 281 Mich. 515. ‘f. 1" ‘.-:_ .L, ~}_ J I J: 1144‘ "‘ u \. 72 sidewalk near a school building?"8 The teacher had sent boys out on the sidewalk for foot races which were part of the school's physical education program. The races were super- vised by a gym attendant, and neither the teacher nor principal were present at the time of the accident. The injury occurred as a result of a boy's colliding with a passing pedestrian on the sidewalk. The boys had been warned against runninginwnlpedestrians were passing and the attendant had shouted a warning to the running boy prior to the accident. Al, I 3 c h col The court, holding the scyool employees not liable, said: Even if it be assumed (though the record does not so show) that defendants were negligent in allowing the trials to be run on the walk, still the proximate cause of the accident was the reckless negligence of Krupansky [student] who, knowing that Mrs. McDonell was on the walk, continued his pace until he ran into her. Such inexcusable and unusual conduct on the part of a boy 14 years old certainly could not be foreseen. Further, the instructions not to run when others were on the walk were explicit. The regretable conduct of Steve Krupansky, not negligence on the part of defendants, caused the injury to Mrs. McDonell.“9 The case illustrates that though there may have been negligence on the part of the school employees, there was no liability because the negligence was not the direct cause of the accident. It also indicated that liability may result even though an accident occurs in the teacher's absence and off school property. “8McDonell v. Brozo, 285 Mich. 38. 49Ibid. 73 The want of care which an ordinary prudent and careful man would exercise under given circumstances is the yardstick which the jury uses in determining negligent behavior; it is applied by the jury or judge to the circumstances and the duty' owed the injured. Even though negligence is shown, the individual still has available the defense of contri- butory negligence, intervening causes breaking the chain of events leading to injury, and assumption of risk by the plaintiff. Though the standard of conduct is the ordinary prudence of the common man, this should not lead one to conclude that the teacher's responsibility to her students may be equiva- lent to the ordinary responsibility of citizens at large. There are several reasons, previously cited, why it might be expected that the responsibility owed by professional people to injured pupils would be at a high level.50 Liability of school administrators. There are few cases in the United States where the courts have been called on to rule on the liability of school administrative officials. In general, there is no distinction made by the courts between teachers and administrative officials and generalizations regarding the liability of teachers are applicable to pro— fessional employees charged with administrative responsibi- lities. Schaerer cited cases where the superintendent of 508upra,‘pp. 45:46. 74 schools had been declared a public officer rather than an employee and concluded that perhaps the superintendent might share the immunity protecting board members against liability.51 Evidence to support such a theory appears meager and rather inapplicable to the author. Many writers in the field express the feeling that administrators may be liable for damages for tort to an extent far greater than the number of cases brought against them would lead one to believe.52 One author makes the suggestion that one reason administrators have not been in- volved in more instances of litigation is the possibility that the public may not be aware that school administrators, unlike school board members, may be held liable for negligence.53 Although one's position within a school system offers no protection against liability in and of itself, it should be noted that the nature of an administrative position does appear to separate the person holding the position from close contact with pupils so that the possible negligent action of the administrator may not often be the direct cause of injury. The teacher through whom administrative actions are most likely to be carried out appears to stand 51Robert w. Schaerer, The Liability Status of Indiana Public Schools (Bloomington, Indiana: Indiana School Boards Association, June, 1959), p. 16. 52Garber and Boyer, "Planning and Supervisory Respon— sibilities to Avoid Tort Liability," op. cit., p. 75; Rosen- field, op. cit., p. 44. 53Bolmeier, op. cit., pp. 30-32. 75 in the most vulnerable position of being held negligent in liability suits. Teacher negligence not imputed to administrator.-— It was indicated, pppgg, that the administrator may not often be the direct cause of negligence because of his indirect relationship with pupils, which leads to the question as to whether the administrator may or may not be liable for the negligent action of subordinate em- ployees. Under the old legal principle of law that the master may be liable for the acts of his servent where he is carrying out the orders of his master, it might appear that administrators could be liable for the negligence of teachers. This, however, is not the case. The school administrator is neither the employer nor the master of subordinate employees. Bolmeier, in citing the inappli— cation of this legal principle, warned that this fact does not eliminate the liability risk involved in admin- istration and supervision since it does not rule out liability where the administrator co—operates, directs, or encourages the action or lack of action which contri- 54 butes to a wrong leading to injury. 51+Ibid. 76 Though the administrator may have a professional inter— estenkian ethical responsibility in holding negligence of employees to a minimum, the official responsibility delegated to an administrative position does not mean assumption of liability for the negligent conduct of subordinate employees. Indemnity for Damages Recovered Both individuals and groups collectively may and have invested in liability insurance. The Michigan Education Association has adopted an insurance plan providing general liability insurance for its members as part of their member- ship service since 1954. The insurance is underwritten by the Auto-Owners Insurance Company and agrees to pay on behalf of the teacher all sums up to the amount of $20,000, which the teacher might become obligated to pay by reason of liability imposed by law for damages because of bodily injury caused by the teacher's personal acts arising out of and in the course of the teacher's duties as an employee of a board of education. The insurance company also agrees to pay for the teacher's defense in suit for damages even if such suit is groundless, false, or fraudulent. School District Liability in Selected States Laws, legal procedure, and judicial interpretations pertaining to tort liability of school districts do have variations, dissimilarities, and modifications peculiar to each state. Pertinent to this study is the development of 77 tort liability of school districts in certain states which may form the pattern 'upon which the trend of school dis- trict liability is likely to follow: in Michigan. Selection of states is based on (1) state statutes relating to tort liability of school districts and (2) judicial modifications of common law immunity. Reutter reviewed the basis for governmental tort immunity and categorized the existing exceptions to the doctrine of non-liability in tort of school districts into seven broad classifications, three involving legislation and four involving court interpretations, as follows:55 1. Legislation 1. Abrogate doctrine of immunity-~California and Washington. 2. Abrogation in effect of that part dealing with negligence. Connecticut, New Jersey, New York, and local option in Wyoming. 3. Indirect exceptions to immunity. Safe place statutes, public liability statute, authority to purchase insurance or sue insurance company statutes. II. Modifications by judicial ppinion. 1. Deviation from long-stgpding precedent. New York and Illinois. 2. Purchase of liability insurance. 3. Nuisance exception. 4. Proprietary function. California.--In 1923 three amendments were added to the California Political Code imposing liability for injuries caused by defective or dangerous conditions of school property, 55Reutter, op. cit., pp. 28-30. 56Illinois added by author. 78 for injuries or damages caused through the negligent oper- ation of school owned motor vehicles, and for injuries to persons or property due to or arising from the negligence of the district, its officers, or employees.57 These stat- utes are unique and not found in any other state. Over the years additional statutes have been added giving school districts authority to purchase liability insurance, pro- viding for methods of filing claims, and setting up pro— cedures for verification of claims.58 Liability has been imposed on school districts in numerous numbers of cases under these statutes.59 One writer, after reviewing cases in California opined that the courts appear to attach Considerable importance to precautionary measures taken before and at the time of the 60 accident as evidence of non—negligence. Washington.--In 1907 a statute was placed on record making school districts liable for injuries they inflict 57California Political Code (1923), p. 67, sec. 2; California School Laws (1937), Art. Iv, sec. 2.801; Ibid., Art. 5619, sec. 2; Ibid. (Vehicle Code) sec. 400. 58California Government Code, Annotated (1960), par. 1956; California Education Code, Annotated (1960), par. 1042, 1044. 59Carlson, o . cit., pp. 76-78; Lee 0. Garber, 1960 Yearbook of School Law (Danville, Illinois: Interstate Printers and Publishers, Inc., 1960), p. 62; Bellman v. SEQ Francisco High School District, 73 P. (2d? 596 Calif.; Kerby v. Elk Grove High School District, 36 P. 2d) 431 Calif. Carlson, o . cit. 79 upon individuals and under this law a number of school dis- tricts were held liable.61 In 1917 the Washington Legisla- ture amended the statutes to limit action in cases relating to parks, playgrounds, fieldhouse, athletic apparatus, or manual training equipment, in or about any school house or elsewhere, owned or operated by school districts.62 This statute greatly limited liability of school districts, how- ever, court cases Show that Washington is one of the more liberal states in upholding the rights of the injured party. Liability insurance may be carried by school districts. New York.-—In 1906 the New York State Court handed down a precedent case which abrogated the immunity doctrine and held that although the board of education was a govern- mental agency of the state, it remained liable for its own 63 negligence. In 1937 statutes, often referred to as "save-harmless statutes,‘ were passed which provided that the board shall "protect and save—harmless” its employees from any loss 64 incurred by court judgments or damages for negligence. 61Revised Code of Washington, sec. 4.08.120. 62Washington Compiled Statutes, 1922, sec. 4706, p.703. 63Wahrman v. Board of Education, 111 App. Div. 345; 97 N. Y. S. 1066 (1906). 64New York Education Law, secs. 2510 and 3023 (as re- numbered in 1949). 80 These statutes neither eliminate the liability of the em- ployee nor exempt the employee for his negligence but rather provide for indemnification of the teacher if a loss should occur. Generally, this type of law does not directly affect the application of ”governmental immunity" to school dis- tricts, however, the New York courts have interpreted their law as, in effect, imposing direct liability on the school board as direct right of action is allowed against the school district for the negligence of its employees.65 Many cases have been decided against New York school districts, directly or indirectly, under statutes and court interpre- tations which are possibly the most generous to the injured in current use. New Jersey.—-This state, in 1937, imposed on boards of education the duty to furnish employees with legal counsel in actions based upon acts arising out of or in the course 66 of their employment. During the following year ”save- harmless” statutes protecting school employees against tort Claims were passed which were later, in 1955, expanded to include all employees of the board of education.67 The courts have held that these statutes do not allow the school district to be sued directly.68 65Garber, Law and the School Business Manager, op. cit., Do 199- 66New Jersey Rev. Stat. (1937), 18:5-20.2-3. 67New Jersey Laws (1938) Chap. 311; Rev. Stat. New Jersey Title 18, 5-30, 5-50.2, 5.50.3. 68Tripens et al. v. Peterson et al., 78 A.(2d) 149, 11 N. J. Sup. 282 (1950). 81 Connecticut.—-Connecticut adopted a save-harmless statute similar to the New Jersey and New York statutes in 1945. The school district still maintains its governmental immunity but districts have been held liable for nuisance.69 Minnesota.--Minnesota has the oldest statute pertaining to liability; a statute passed in 1851 and reaffirmed in 1877 which appeared to nullify the doctrine of governmental immunity by giving permission for action for injuries to the rights of the plaintiff arising from some act or omission of such officers, or of the district.70 The law has been nullified by the court's ruling that the intent of the legis- lature was not clear.71 In 1941 the Minnesota legislature granted school dis— tricts the right to purchase liability insurance protecting board members, teachers, and school employees against personal and property liability, injuries arising from school bus accidents, and accidents arising from the operation of safety patrols, providing the insurance contract includes a waiver 69General Statutes of Connecticut (rev. 1949), secs. 1494—1495, p. 553; Lee 0. Garber, "Courts Placing More Emphasis on Save-Harmless Statutes,‘I The Nation's Schools, 59:63-64, June, 1957. 70Minnesota Laws (1851), Ch. 79, secs. 12-16; Mason's Minnesota Statutes (1927), vol. 1, sec. 3098, p. 720. 71Bank v. Brainerd School District, 51 N.W. 814, 49 Minn. 106; Garber, Law and the School Business Manager, pp. cit., p. 199. 82 by insurer of governmental function as a defense.72 A 1959 law allows school districts to purchase insurance on school owned or leased vehicles and buses but specifically states that the payment of insurance premiums does not make the district liable.73 Oregon.--This state has an early statute similar to that of Minnesota passed in 1862 and later amended in 1877 appearing to permit tort action against school districts.74 The courts have ruled otherwise by applying the doctrine of "stare decisis” as did the Minnesota courts. Permission is granted for the purchase of liability insurance but failure to provide insurance is not viewed as negligence. Thus the courts consider all matters concerned with operating schools governmental in character and hence not actionable under the 75 law. One exception to governmental immunity was allowed because the school district was engaged in a ministerial duty rather than a governmental duty, a position later reversed by the court.76 72Minnesota Statutes (1941), sec. 471.43; Garber, Law and the SchOOl Business Manager, op. cit., p. 199. 73Minnesota Extra Session Laws of 1959, Chp. 71, Art. IV, subd. 9. 7“Oregon Compiled Laws Annotated, sec. 8-702. 75§p§pp§£_v. School District No. l, 254 P. 357, 121 Or. 511. 76Lppkp_v. School District No. 1, 275 P. 686; Antin v. Union High School District, 280 P. 664 (Oregon). 83 Wisconsin.--Cases have been brought before the Wiscon- "safe place" statutes dating from sin courts under their the year 1911 which makes an owner of a public building liable for injuries due to maintenance negligence of buildings. The courts have consistently dismissed complaints against school districts.77 A state statute does allow the introduction into court that the defendant is insured and allows the insurance company to be named and joined as party defendant in a liability suit.78 Illinois.—-In 1952 the Illinois courts handed down a decision which held a school district liable for damages up to the amount of insurance coverage carried by the school district on the theory that governmental immunity was a public policy to protect public school funds but that since school funds were protected by insurance the reason for im- munity no longer existed.79 The following year the legisla- ture adopted a statute authorizing boards to insure against liability providing the insurance firm agreed not to use immunity as a defense. The courts in Illinois allow to be admitted in evidence facts concerning the possible insurance carried. 77Garber, Law and the School Business Manager, op. cit., pp. 184-201; Heiden v. City of Milwaukee, 226 Wis. 92. 8 7 Ibid.; Wisconsin Statutes (1931), secs. 85.93 and 260.11; Wisconsin Statutes (1933), ch. 101, sec. 101.06 and 101.01 (11). chool ). 79Thomas v. Broadlands Community Consolidated S District, 348 Ill. App. 567; 109 N. E. (2d) 636 (1952 84 In 1959 the Illinois Supreme Court made modern legal history when they handed down a decision which ruled that 1! school districts are liable in tort for the negli- gence of their agents and employees and all prior decisions n80 to the contrary are hereby overruled. This action of complete overthrow of the immunity doctrine is viewed by authorities in the field of school law as the most sweeping, complete, and precipitate action taken by the highest court 81 of any state up to the present time. This case is con— sidered by Garber to be one of the seven most significant 82 court decisions affecting education during the last decade. Minor deviations from immunipy in other states.-- Alabama and North Carolina have tort-claim acts which allow limited recovery for payment of injuries but do not 83 Kentucky abrogate the doctrine of governmental immunity. and Tennessee allow the school district to carry insurance on school owned vehicles and waive governmental immunity up 8OMolitor v. Kaneland Community Unit School District, 163 N. E. (2d) 89 (Illinois)1959. 81Lee 0. Garber, ”Illinois Court Overthrows Immunity Doctrine,” The Nation's Schools, 64 70—72, August, 1959; Stephen F. Roach, 7TSchool District Tort Immunity Overruled," The American School Board Journal, 139:53, October, 1959. 82Lee 0. Garber, "How the Courts are Changing the Education Scene," The Nation's Schools, 69:92-93, January, 1962. 83Remmlein, ”Tort Liability of School Districts,” pp. cit., pp. 195-200; General Statutes of North Carolina, secs. 115-115 through 197; Alabama Code of 1940, sec. 55-333—4. 85 84 to the amount of insurance the school district carries. Failure to carry insurance imposes no liability.85 Arizona, Pennsylvania, and New Hampshire maintain that governmental immunity covers the school district when it is engaged in the performance of a governmental activity but that the school district may be liable when engaged in the performance of a proprietary activity. Renting of school property, school sponsored recreation programs, and nuisance are liability hazards in these states, especially 86 New Hampshire has hinted that school in Pennsylvania. districts might be liable up to the limits of protection provided by insurance.87 WY It has been the rule of law in Michigan that school districts and their boards of education are not liable for injuries to the public except where the statutes specifically state otherwise. Such liability exists under workmen's compensation laws and motor vehicle laws creating liability 8L‘LRobert R. Hamilton, The National School Law Reporter (New London, Conn.: Arthur C. Croft Publications, August, 1958), 8:48; Schaerer, op. cit., p. 32. 85Robert R. Hamilton, The National School Law Reporter, op. cit., November, 1956, 6:74; Schaerer, op. cit. 86 Lee 0. Garber, ”State Courts Define School Liability, The Nation's Schools, 63:104—106, March, 1959; Ruetter, pp. Cit, pp. 28*30. 87Lee 0. Garber, ”Liability of Districts that Carry Insurance,” The Nation's Schools, 60:90, October, 1957. 86 for injury arising from the use of school owned or leased vehicles. Recent cases involving school athletic events where an admission fee was charged have been troublesome to the court, however, no situations or activities have been found to be non-governmental in nature as far as schools are con- cerned. Townships have been declared to have been carrying out proprietary functions in Michigan and courts in some states have placed some school activities in this category. In spite of vigorous dissenting opinion by the court and general dissatisfaction with the principle of governmental immunity, the court appears to broadly view the activities and functions of the school, supporting a general conclusion that perhaps everything the school does is of a governmental nature. In suits against purely municipal corporations, the courts have ruled that ”immunity” has been eliminated from the law; however, later cases held that the principle of law abrogating governmental immunity did not apply to the State itself or to school districts. The latest opinion of the court, at date of writing, is that the doctrine of governmental immunity has been established by the Legisla- ture since 1945 and cannot be abrogated by the court. School employees are liable for their torts in Michigan as school district immunity does not extend to offer protection to them. Generalizations regarding the 87 liability of teachers are applicable to school administra- tive personnel; teacher negligence is not imputed to the administrator. Review of the literature shows that school districts throughout the country are generally protected from torts by the principle of governmental immunity although there are notable exceptions to this general rule. States having made noteworthy departures from the general rule of school non-liabilityinclude California, New York, Washington, and Illinois. Three states, Connecticut, New Jersey, and New York have "Save-harmless” statutes which provide that the board of education shall protect and save-harmless its employees from any loss incurred by court judgments or damages for negligence; a fourth state, namely Wyoming, provides such protection on a local option basis. CHAPTER IV MICHIGAN SCHOOL OFFICIALS'PERCEPTION OF SCHOOL LIABILITY AND SCHOOL LIABILITY RISKS Introduction This Chapter is a descriptive examination of the general knowledge of school officials relating to school liability in selected areas; of school Officials' opinions concerning school liability; and school Officials' percep- tion of liability hazards and risks. Documented information, opinion of experts, and legal principles (presented in Chapters 11 and III) are put aside as this chapter deals only with the opinion of practicing school officials and as such, may or may not be substantiated by fact or be in agree— ment with the opinion expressed in the literature. No judgment is made on the merits, correctness, or inaccuracy of opinion except in areas where there is rather definite conflict with fact. The base of liability is legal principles; however, cases are settled based on the facts of the case or situation thus making prediction of liability on the general circumstances of a situation a most specula- tive venture. 88 89 Much of the opinion expressed in this chapter is based on questioning regarding the fictitious Cases presented in 1 School officials were not asked the interview schedule. to place themselves in the position of judge or jury to determine fault in the cases presented, but were asked to view the circumstances of the situation in general from the standpoint of a practicing school administrator. School Liability of General Concern Rather general replies were sought concerning the over- all concern with which school officials viewed school district liability. The responses ranged from the view that general liability of school districts was no problem whatsoever to the judgment that school district liability presented a _ tremendous problem in administration of schools at this time. Of the forty-five replies, eleven per cent viewed school liability with much concern, forty-five per cent said lia- bility was a problem, twenty—two per cent opined that liability was becoming a problem, and twenty—two per cent held the opinion that school liability presented no particu— lar problem in school administration. Three of the ten officials who indicated that liability was not a problem qualified their points of view by explaining that school liability was merely a part of business management or routine administrative tasks and thus no more of a problem than any other routine task of school management. 1Appendix A. 90 General Knowledge of School Officials School officials interviewed generally conveyed to the interviewer early in the interview that they did not pretend to be well informed on the subject of tort liability. The interview schedule avoided direct questions which would have the appearance of directly testing the interviewee on his knowledge of the subject; however, opportunity was given to express himself on areas where rather factual information could be given. In a few instances officials were asked quite directly if they were generally well acquainted with certain broad general areas of information. Areas selected for examination.--The following areas were the subject of inquiry for purposes of determining school Officials' acquaintance with knowledge of school connected liability: (l) Acquaintance with one or more Michigan Supreme Court cases of school liability. (2) Acquaintance with status of liability in other states. (3) Knowledge of differences between Michigan and other states. (4) Acquaintance with the status of school district liability in Illinois. (5) Knowledge of the Ferris case, the first school district liability case to appear before the Michigan Supreme Court. (6) Understanding of the distinc— tion (legal) between liability on school-owned vehicles and general school liability in Michigan. (7) Knowledge of facts which determine jurisdiction where buses cross state 91 ‘2. lines. (8) Familiarity with the liability status of school _.' gnarl, . employees. The data is summarized in Table 1. Acquaintance with Michigan cases.--Few school officials have more than a speaking acquaintance with Michigan court cases involving the liability of school districts. Of the forty-five school officials interviewed, approximately forty-two per cent were acquainted with no Michigan cases, twenty-nine per cent indicated that there were cases but could identify none, sixteen per cent mentioned cases which could be identified, and thirteen per cent were well enough acquainted with cases to point out details and findings of the courts. In all, only two cases which have appeared before the courts were identified, plus one case settled out of court and one non-school case. Acquaintance with school liability in other states.—- Michigan school officials are not generally acquainted with school district liability in the various states. Those who are aware of differences between states most often cited California as being different. Fifty-three per cent of replies indicated no knowledge of liability in states out- side Michigan, twenty-seven per cent of the answers indicated that there were differences, or that schools were liable in some states, et cetera, but could not identify states, nine per cent discussed school liability in one state to some 92 ROOH RH.Hm Rm.m &S.©: momonqu Ammv- “av Aamv Hooron no apaaaowaq .m ROOH &0.00H CCHH woman mmopom thOOO ucmfifloom on on on Amav been; coapoaonaasa .s e004 mm.mm mm.ma ms.m mm.ma A.roazv granarmaa ammocow é .mcmgp Amav Asv Amv Ammv romance concocaonao .p moon mo.ooH mam.rcaz mma.onmo on on on Amzv mflnmom mo owooazocx .m mooa mm.m mw.sm naosaHaH ca soaaabwaa.onao gov Lac gov “sac sconce cc season .a mooH mm.m mm.ma ma.am ea.am worsen porno new .coaz Aav “av AHHV Ammv scraper neoconoccao .m moon ma.aa am.m as.pm am.mm mousse negro ca soaaapwaa Amv Aav Amav Aamv Hooron no worsen .m mooH em.ma em.ma mm.mm mm.ma nonwo .noflz 0905 no oco va Adv AmHv Amav hpflz mocmpcfimsood .H coonpam co ooomrom roar noacaoodm oz zone o_soo m: H z COHpMEpomQH mucoucflmsoo¢ msoapMEpomcH no hmHSUCH mo momma Hmsocmw 060m ESEHQHE owooazosx oz meDQZH m0 mwm COHmeLom:H* mooa ms.m mm.mm mm.sm mm.mH coaewonodncwse Amv AOHV Ammv Amv mom mHHQSQ on owpmco .m mood mm.ma mm.mm mm.mm mm.a coapoaenasae no women gov Aamv Amav Amv .oemon co boo osooaooa .4 aces mp.mm mo.om ma.aa date cacao toe on Amav Amv Aomv Loo m.mm£omop no on: .m moon mm.m ma.pm ep.ma mm.mm AH panel has Hoocon AHV Amav Asv Ammv co Hadzd or anzwcH .m ROOH Rm.wa &m.m: R0: *Hmsocow QH .mQMLB on Amv Amav Amav .H once as soaowaeam .4 ma u song o.coo massacred nonracm so massacres oz pmnzoEom ouficflmom COHpmSDHm nonsense Hoorom or enmnmm aeaaaomaq no cosmoo N mqm<8 mQ m< ZOHB¢BmOmmz¢mB zH QO¢NoHHmn :ompmfim haco p59 :oaoaocapa huHQSEEH ompflo mpcoocoamou ozpuzpcoze .pmfixo 0p COHpmSDHm mcfizoaam how so mocowfiamoc mom who; mpHHHQMHH mom mcommwa HH¢ .HH ommo* 102 asm.m mo.oa aw.am e604 AHV Amfiv Ammv on Upmnmn m mmmomope .: as.p mm.mm mm.sm mooa Amv Amav Ammv on phone: 8 mocmmfisz .m Rm.m &m.mm Ro.o: mooa opmnmn AHV Ammv Amav on m coapoQSM humpofimoogm .m em.sa mm.ma as.pp mooa *enwhms aeaaarwaa m .onao on va Aav Aomv Hooson so aeaaarmaa essence .a zoom p.coQ oz panamEom mow m3" 2 momnnmm Hmpoe osmnmm monsoommm QOaecH 09 mm: mHHQZH mo wBHdedHQ mqummom mme UZHBHo .m KOCH Rm.m: Rm.wa &o.o: coemH>LmQ5m on Amav va Awav on Hedda .m secs sm.mm sfi.as ncsaonwssao goo AMHV gov Ammo on no coama>scosn .a mood sc.mm s:.:s noosoaoso on Ammv on Aomv on coonoaeaenoo-soz .m &00H Rm.mw Rm.:m Rm.m QOflmH>Lod5m on Ammv on AHHV AHV onam cacao .m sooa so.oc sm.mm as.c abandons on Asmv on Amev Amv asapsooacsoo .H m: u z (302% UpmNmm momcpom zaoxfiq cmoocoo mos p.com m 902 wCOLum < mQ¢HOHmmO doomom Nm QO¢Ndatum isavailable on the extent of use of such endorsements. Name of the insured.-—The usual practice of schools as found in this study was to list the legal name of the school district as the named insured. The definition of the insured, under a standard liability policy, includes the ”director” which is interpreted to include any trustee or any member of the board of governors of the named assured. 148 Some insurance underwriters will list the names of the board members, superintendent of schools, and principals at no extra cost.6 In this study,only two school districts listed the names of the board members under the name assured and in one case only both the names of the board members and the name of the Superintendent of Schools were listed under the assured. Cost, rates, and forms.--This study in no way provides research on rate-making organizations, rates or costs; how— ever, some observations may be apropos. Forms of contracts and rates are determined primarily by rate-making organiz- ations, mainly the National Bureau of Casulty Underwriters and American Mutual Alliance. However, a company could form their own rate-making organization and operate independently so long as they conformed to the insurance codes of the State. With the exception of Detroit, uniform rates are used throughout the state. Rates do vary from state to state and from city to city. With the exception of large cities, rates are generally uniform throughout a particular state. For example, basic rates for bodily injury liability for public school classifications is three cents per pupil in Michigan and four cents per pupil in Detroit, as set by National Bureau of Casualty Underwriters. It may be of interest that 6From a quotation to the writer dated March 14, 1962. The Hartford Accident and Indemnity Company via South Haven Agency, Inc., South Haven, Michigan. 149 the rates in states having more liberal laws regarding the liability of school districts are considerably higher. CompariSon of the rates for coverage,similar to above,show California with a rate of fifty cents per pupil, Washington with a rate of ten cents per pupil, and New York with varying rates of seventy cents to one dollar and sixteen 7 This situation does not prevail for cents per pupil. liability rates on automobiles for such rates vary from one region to another and from rural areas to large cities. The fact that uniform rates are used in determining the cost of coverage should not be interpreted to mean that all commercial companies will charge the same premium for like coverage. In fact,it appears from discussion with school officials who uSed bids and from limited comparison of costs from one school to another that some astounding results may be expected from various companies bidding on the same insurance. The basis for such differences is the practice of insurance companies to use experience rating plans, discounts on premiums above a certain amount, or both combined, known as a credibility factor. In addition some companies may use what is known as schedule rating whereby various judgment factors such as housekeeping, attitude toward safety, et cetera, are utilized in determining the final premium. 7Letter dated February 5, 1960 with attached exhibit setting forth basic limits for bodily injury liability rates. National Bureau of Casualty Underwriters, 60 John St., New York 38, New York. 150 Financial limits of policies.--The question of liability limits becomes a question of judgment and economics,and each purchaser must draw the line determining the upper limits which will be set as the total financial obligation of the insuring underwriter. The rates charged, of course, are higher for higher limits, although it costs increasingly less percentagewise to carry the higher limits. Table 14 provides information concerning the limits of policies carried by school districts included in this study. The greatest number of school districts purchased insurance with limits as follows: bodily injury per person, $100,000; bodily injury per accident, $300,000; property damage, $25,000 to $50,000 although nearly one—third of those who insured carried only $5,000 limits on property damage. The limits on bodily injury per person ranged from $1,000 to $300,000; limits on bodily injury per accident ranged from $10,000 to $1,000,000; and limits on property damage per accident ranged from $1,000 to $100,000 although four school districts did not carry property damage who carried liability insurance. Two of these four carried insurance on bleachers only. Insurance Purchasing Practices Insurance and legal counsel.--Each respondent in this study was questioned regarding counsel by persons outside the school system regarding liability in connection with the 151 TABLE I4 LIMITS OF LIABILITY AND COVERAGE BY FREQUENCY Coverage Bodily Bodily Property Amount of Liability Inggiy Ingggy Dagzge Person Accident Accident f I % f % f % None 1* 3* 1* 3* 4 12 $1,000 0 0 1 3 $5.000 1 3 0 9 26 $10,000 2 6 1 3 0 $20,000 0 1 3 l 3 $25,000 2 6 1 3 7 21 $50,000 2 6 1 3 ll 32 $100,000 23 67 2 6 1 3 $150,000 1 3 o 0 $200,000 0 l 3 0 $300,000 2 6 20 59 0 $500,000 0 5 14 0 $1,000,000 0 l 3 0 Total** 34 100 34 100 34 100 Number who do not insure 11 ll 11 Grand Total 45 45 45 *Carry insurance, limits not known. **Total = number who carry insurance. f = frequency 152 possible purchase of general liability insurance by the school district. The data as summarizedeumashown in Table 15. Four of the school districts included in the study indicated that the matter had not been considered, about one-fourth of the school districts depended on their own staff and board of education entirely for counsel, and approximately two—thirds of the school districts sought the counsel of attorneys and/or insurance agents or brokers regarding the purchase of liability insurance. Approximately one-half of all the schools interviewed were advised by insurance counsel with nearly one—third of the total school districts depending entirely on insurance counsel as a non— school source of information. TABLE 15 NUMBER OF SCHOOL DISTRICTS USING LEGAL AND INSURANCE COUNSEL REGARDING THE PURCHASE OF LIABILITY INSURANCE Item Number Per Cent 1. Use legal counsel only 6 13-3 2. Use insurance counsel only 14 31.1 3. Both legal and insurance counsel 9 20.0 4. Depend on staff and board of education 12 26.7 5. No consideration of matter 4 8.9 Total 45 100.0 Insurance is a field of specialization involving technical knowledge perculiar to insurance, using terms, 153 definitions, and meanings likely not to be understood by those who have not studied the subject or who have little experience in the field. In short, liability insurance is a complicated business. The purchase of liability insurance is a job demanding professional qualifications. Efficient, competent, insurance programing versus patronage.--This study does not investigate the insurance competence of school officials or insurance agents. The need of competent knowledge of insurance, awareness of all property and equipment owned and used by the school district, knowledge of values of district property, ability to draw up specifications, capability to examine insurance contracts, and skill in seeing that claims are paid equitably and properly stand out as obviously desirable competencies of those administering the insurance program. The problem as to whether a school system should or should not carry liability insurance should not be confused with the problem of adequate purchasing and administration of the insurance program. The fact that school districts appear to lean heavily on insurance people for advice and counsel regarding the purchase of insurance and competent information in this area implies that heavy responsibility rests on insurance agents serving the schools. It further implies that liability insurance and professional counselaumztoo important to make awarding of liability insurance a means or device of 154 enriching the insurance agencies within the school district. General indifference of school officials interviewed con- cerning the administration of their liability insurance pro— gram and frequent reference by officials of leaving the whole problem to their local insurance agent or agent of record suggest a need for further investigation of the means of choosing insurance counsel, extent of insurance purchased on a patronage basis, et cetera. Bids and specifications.—-The schools in this study did not generally place liability insurance out for open bidding. Forty-one per cent of the schools who purchased liability insurance indicated that they did use either specifications or insurance proposals; however, the writer viewed few such proposals. Thus no conclusion is warranted regarding the completeness of specifications furnished or data provided in the proposals. Three officials, in addi- tion to those mentioned above, indicated that a proposal was used the first time insurance was purchased but the practice was not followed in renewal of their insurance. Data.are shown in Table 16. The picture of purchasing practices is further con- fused by many local customs in awarding insurance to certain agents in town, use of agent of record who writes all school insurance, and the use of local committees of insurance agents. Insurance proposals inspected which were considered quite complete included: 155 TABLE 16 NUMBER OF SCHOOL DISTRICTS WHO PURCHASE LIABILITY INSURANCE ON BIDS OR PROPOSALS AND NUMBER WHO WAIVE GOVERNMENTAL IMMUNITY IN INSURANCE N=34 Item Yes No Total Use specification and bids 9 Use insurance proposals 5 Total: Use specification, bids, or (14) (20) proposals 41.2% 58.8% 100% Use waiver of immunity (6) (28) 17.6% 82.4% 100% A statement concerning the proposal or specifications and instructions for submitting the bids or proposals. Information and rating of insuring companies acceptable to the Board of Education. Name of the insured to be specified on insurance policy. Insurance coverage required and limits of policy. The policy period. Request for and explanation and breakdown of premium, discounts, and estimated dividents. Deductible features. District statistical information on which to compute rates by liability exposure groups, i.e. 3 156 motor vehicles, non—ownership risks, elevators, food serving areas, contracted exposures, num- ber of students by schools, gate receipts at stadiums, et cetera. 9. Loss experience of school district. 10. A bid proposal form for use of insurance agent or broker in whose behalf the proposal is made. Actually,none of the specifications or bid forms in— cluded all of the above characteristics, but three such bid forms viewed by the writer included a majority of the above items of information. Waiver of immunity.-—Some school districts in this study, as shown in Table 16, had written into their liability insurance contracts a waiver of immunity which forbids the insurance company to use governmental immunity as a defense in case of suit except where the school district grants its consent. A sample of such a waiver cited on a school policy follows: It is agreed that the Company will not assent as a defense against any claim which may be brought under this policy any legal immunity which the insured may possess by reason of its status as a municipality unless, as respect any claim, the company shall have received from the insured, the insured's written con— sent to the assertion of such defense in connection with such claim. Whether such a waiver will or should mean a render of better service and better settlement of claims or make it any less difficult to get a judgment against a school 157 district is a question for the legal profession and not with- in the realm of the writer's competencies. Summary In spite of the fact that the purchase of general lia- bility insurance by school districts has never been sanctioned by law, the majority of school officials in this study believed that school districts should purchase such insurance. As a matter of fact, such insurance is purchased by three- fourths of the school districts. General liability insurance is purchased primarily to protect the school district from financial loss, but some school officials view this type of insurance as filling a social and moral obligation to pupils, teachers, and the public at large. School officials appear to overrate the coverage provided by the liability insurance purchased by school districts, especially in the area of teacher protection from personal liability and meeting the school district's possible moral obligation to pay for injuries to pupils and the public. Commercial insurance companies did make claim settle- ments for injuries without a court judgment in the few cases reported by schools in this study. The few cases do not justify any over-all conclusion. Generally, school districts who purchase insurance obtain coverage for bodily injury liability on premises and operations up to $100,000 per person and $300,000 per 158 accident; property damage liability ranging from $5,000 to $50,000; and to a lesser extent carry product liability. Both the comprehensive and scheduled hazards form of policies are purchased in almost equal proportion. Where school dis- tricts purchase the comprehensive form, additional coverage such as non-ownership liability, contractual liability, protective liability, et cetera may be included or specified in policy. Few school districts included their school owned buses and other vehicles on their general comprehensive policy, thus many districts may not be taking advantage of any discount available due to size of premium. In general, school districts used the legal name of the school district as the named insured, however, additional protection to the school's administrative staff may be available at no extra cost to the district by adding the names of the officials to the policy. Uniform rates are used throughout the state, except in Detroit; however, experience rating, creditability factors, schedule rating, and premium discount may be utilized to reduce or increase premiums. Some schools use rather compre- hensive bid or proposal forms in the purchase of liability insurance, but there is no evidence that this is general practice. Evidence indicates that school officials lean heavily on insurance agents or groups of insurance agents for counsel regarding protection against possible liability and the 159 purchase of liability insurance. If the varying range of insurance coverage, differing policy characteristics, mis- understanding by school officials of just what is covered by the insurance which is purchased, and indifference by school officials is indicative of the quality and extent of counseling by insurance agents, it may be inferred that insurance agents in the various school districts are not all giving schools uniform, competent, professional advice. The whole problem of insurance in Michigan divides itself into separate parts or sub—problems; namely, (1) whether a school district should purchase insurance, and (2) the purchase of adequate protection. This study sug- gests that the first has been resolved in the affirmative and that the second has been largely ignored. CHAPTER VI SCHOOL PRACTICES AND PRECAUTIONS RELATING TO LIABILITY This chapter deals with the effect school liability may have on school practices and programs and precautionary measures taken by school districts or school officials against the hazards of liability. Inquiry is made con- cerning possible relationships between size of school dis- trict and school practices and policies and relationships between the school Officials' perception of liability and school practice and policy. Liability Laws Uphold Standards of Care Present law in the area of tort liability is designed to discourage accidents or conduct falling below a prescribed standard by giving relief to those injured and punishing those at fault. Throughout the literature relating to neg— ligence and liability is a presumed standard of conduct, generally defined in terms of standards of the normal man or prudent person. In this vein of thought but on the more humorous side is the following paragon of sarcasm regarding the "reasonable 160 I61 man" by A. P. Herbert:1 The common Law of England has been labouriously built about a mythical figure--the figure of the "Reasonable Man' . . . He is an ideal, a standard, the embodiment of all those qualities which we demand of the good citizen. . . . The Reasonable Man is always thinking of others; prudence is his guide and "Safety First" . . ..is his rule of life. . . . He is one who invariably looks where he is going, and is careful to examine the immediate foreground before he executes a leap or bound; who neither star-gazes nor is lost in meditation when approaching trap-doors on the margin of a dock; . . . and will inform himself on the history and habits of a dog before administer— ing a caress; . . . who never drives his ball till those in front of him have definitely vacated the putting green . . . who never from one year's end to another makes an excessive demand upon his wife, his neighbours, his servants, his ox, or his ass; . . . who never swears, gambles or loses his temper; who uses nothing except in moderation and even while he flogs his child is meditating only on the golden mean. Devoid in short of any human weakness, with not one single saving vice . . . this odious creature stands like a monument in our Courts of justice, vainly appealing to his own fellow citizens to order their lives after his own example. The prudent person or reasonable man concept as a standard of care in education is further compounded by the application of the concept as it relates to minors and children, by the teachers‘ role under the principle of 1939 parentis, and the onerous probability that high standards of care are owed by professional persons. Liability dependent on fault is based on the assump— tion that the wrongdoer must pay and implies punishment without which societal standards of care, conduct, and reasonableness could not be maintained. The teacher or 1Alan P. Herbert, Misleading Cases in the Common Law (3rd ed.; London: Methuen and Co., Ltd., 1928), pp. 9-13. 162 administrator, nevertheless, may find adherence to such stan— dards most difficult since they have not been spelled out in the law, lack definite form, and remain legal principles not translated into criteria with which to measure how closely the standards are approached. School Policies, Operating Procedure, and Regulations Pertaining to Liability and Standards of Conduct This research in no manner attempts to evaluate school policies, regulations, or rules of operation in general, but rather attempts to determine the extent to which liability has been the basis for school policies, operating procedures, and regulations and to identify standards of care in current use due to the liability of the school district or its em- ployees. School policy as used in this part of the study refers to the broad category of general policies, operating proce- dures, rules, and regulations governing the operation of the school and school program, irrespective of administrative level, and extending from broad guides of action to "one— shot" decisions to meet existing problems or situations. School policies relating to school district liability.-- For many years Michigan school districts have operated under the protection of ”common—law immunity” except in instances involving the use of school owned motor vehicles. At the time of this study, however, the demise of "governmental 163 immunity" appeared somewhat probable and many believed school non-liability had ended in principle, if not in fact.2 Thus many school administrators were viewing school district lia— bility with increasing interest and attention. School district liability, nevertheless, has not been the basis for enactment of school policy, rules, and regula- tions in general. The only cases where school district lia- bility was indicated as the basis of school policy was the inclusion in some, of information relating to the purchase of school district liability insurance and in one case the school official indicated that their policy included proce- dure for the the reporting of unsafe conditions. Data are shown in Table 17. TABLE 17 NUMBER OF RESPONDING OFFICIALS INDICATING LIABILITY AS A BASIS FOR SCHOOL POLICIES AND PROCEDURES *— - Policy School Relating Unsafe Policy to Warn Condi- None Insurance Personnel tions N=45 1. School district (39) (5)* ( o) (1) liability 86.7% 11.1% 2.2% 100% 2. Liability (33) (0) (12)** (o) of personnel 73.3% 26.7% 100% *Two in writing. **Six in writing. 2Supra, Chap. IV, p.98. 164 In total only twelve per cent of the school officials interviewed indicated that liability of the school district was a basis for any kind of school policy and in all cases this policy spelled out operating procedure for handling insurance or reporting of unsafe building conditions. School policies relating to the liability of school personnel.--Unlike school district liability, individual school employees have no immunity from liability although review of cases show that over the past years liability suits against teachers have been rather rare with no decisions against teachers having been handed down by the Michigan Supreme Court. Even though school personnel may have been liable for torts for many years, not all school administrators would agree that possible liability of individual teachers is a hazard. Neither has the liability of school personnel been the basis for enactment of school policy in general. (See Table 17.) In this study, nearly three-fourths of the schools indicated that they had no policy or policies based on the possible liability of individuals. The remaining one— fourth do warn their employees of liability; one-half of such warnings are in writing and the other one-half are issued at teachers' meetings, pre-school conferences, et cetera. Except in two cases, the warnings admonished employ- ees of their own responsibility for negligence and liability. In two cases the school administrator indicated that it was 165 their policy to point out quite specifically the hazards of liability and to indicate both areas of hazards and proper precautions. Policy not designed due to liability but viewed as diminishing liability hazards.——School officials were not only questioned regarding liability as a basis for school policy but were also asked to consider present policy and indicate those in use, which, although not adopted because of liability, but nevertheless, might be viewed as providing protection againstliebilitycn=as diminishing the hazards of negligence. It should be emphasized again that the data included in this part of the study do not indicate whether the school did or did not have policies but whether the school had policies which the school officials viewed as tending to dminishliability hazards. The responses tosuch inquiry, shown in Table 18, show policies scattered over a number of areas of school operation. Thirty-eight per cent of officials cited no policies providing protection against liability while sixty- two per cent cited one or more such policies, averaging approximately three policy areas each. Only forty-two per cent of those interviewed had such policies in writing. Implications.-—These data show that school liability has not been the basis for school policy in general and that what limited policy that has been identified deals only with 166 TABLE 18 DISTRIBUTION OF RESPONSES INDICATING POLICIES NOT DESIGNED DUE TO LIABILITY BUT VIEWED AS DIMINISHING LIABILITY HAZARDS Frequencyfi Item Unwritten Written ' Total Number citing one or (9) (19) (28) more policies 20.0% 42.2% 62.2% Number citing no (17) policies 37.8% Total 100.0% Areas of Policies and Frequency Areas ' Frequency Extra-curricular activities 16 Use of teacher's cars 3 Use of school buses 15 Supervision and discipline 22 Accident reporting 2 First aid 6 Design and condition of buildings 5 Use of buildings 2 Operation of equipment 7 Safety program 7 Orientation and job outline 10 Total 93 93/28 = 3.32 policies cited per official who cited policies the business aspects of liability insurance and possible warning made to employees regarding their responsibility for negligence. The data are based on the school Officials' judgment for the most part. The writer did inspect some 167 school policies, handbooks, and operating procedure and found no reason to doubt the judgment of school officials inter— viewed. Many school officials did cite policies, regulations, and operating procedure which they believed might diminish the hazards of liability, however, the basis for these policies were reasons other than liability. Present nowhere in the data nor suggested in the inter- views is any reference to standards of conduct or care except as may be implied from customery rules and regulations designed for the orderly operation of school and school pro- grams generally. It must be concluded that the theory of "liability based on fault” has missed its mark as a basis for setting and maintaining a prescribed standard of care in operation of public schools in Michigan, and that standards of care, such as they may be, are based on other factors than lia- bility of either the school district or its employees. Precautions and Limitations in School Practice This part of the research attempts to identify the present and possible future precautions and limitations which may govern the extent of school programs and services due to liability of the school district or its employees as viewed by school officials. This is not a speculative venture or projection based on legal principles and legal cases but rather an appraisal of precautions and limitations which 168 school officials have imposed or may resort to with appli- cation of greater school liability. Present precautions in school operation due to liability.--Table 19 shows the distribution of various pre— cautions by area which school officials employ to minimize present liability hazards. Approximately one—half (forty— four per cent) of school officials indicated that they had no precautions, restrictions, or limitations imposed because of liability. Approximately nine per cent of officials believed that increased awareness of liability or increased liability would be accompanied by greater precautions and limitations, and forty—seven per cent indicated some pre- cautions in effect in their school system due to liability. TABLE 19‘ RESPONSES INDICATING PRECAUTIONS IN SCHOOL OPERATIONS Responses Frequency Percentage Number of schools indicating precautions in school operations 21 46.7 Number indicating no precautions but believing limitations would accompany greater liability 4 8.9 Schools indicating no precautions due to liability 20 44.4 Total 45 100.0 169 The restrictions and precautions, however, were scattered, rather isolated instances, as shown in Table 20. There were no specific areas of common concern to the various school districts although field trips, physical education classes, sports, activities, use of facilities, and safety patrols were areas most often cited. School officials were questioned particularly con- cerning the use of a waiver of liability signed by parents in connection with participation in field trips and other school activities. Only one official indicated that such a "waiver” was of legal value in preventing suit. Six officials (thirteen per cent of the officials interviewed) believed such a form might have value in showing good in- tentions; that it might be good as a public relations device. A composite of all precautions, restrictions, and limitations found in the study would reveal the humorous situation of a hypothetical school as follows: The school personnel would be regulated, directed, and restricted by many rules, regulations, and operating proce- dure in all areas of their work. School money raising activities would be limited; hay rides, car washes, and senior trips would be abolished. No pupils would be allowed to ride in private cars to school events and activities except when they were riding with their parents. 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Such precautions and limitations are not extensive and generally deal with areas of school operations not directly affecting the schools' regular, more or less conventional, academic program. The majority of school officials did not view lia- bility as associated with curtailment of school services in general, though approximately twenty—five per cent believed that liability has or might at a future date impose limit— ations upon the extent of school service offered the public. Liability, in this case, is apparently associated with the liability of the school district rather than liability of school personnel. Both the school Officials' perception of liability and the size of the school district are unrelated and independent of school policies, regulations, practices, and precautions relating to the liability of school districts and/or their employees. CHAPTER VII SUMMARY, CONCLUSIONS, AND RECOMMENDATIONS Summary Need for study.—-The problem of liability is one of growing importance due to a general trend toward greater liability and the probable future direction of the modern school program toward a greater number of activities which may increase the exposure to possible liability risks. Statement of problem.—-The purpose of this study is: (1) to identify and examine problems of school operation relating to the liability of school districts and/or school personnel; (2) to determine the effect present liability laws have on school policies, practices, and programs in Michigan school districts; and (3) to make recommendations, to school officials, boards of education, and others, re- lating to problems due to liability of school districts and/or school personnel. Methodology.—-Generally research in this field has approached the problem of liability from a study of statutes, judicial opinion, and court cases. In this study, a total of forty-five school administrators were interviewed 186 187 using essentially a case study approach. School officials interviewed included superintendents of schools, school business managers, and district assistant superintendents. School liability in general.-—School districts are considered arms of the state and, therefore, the common—law rule of governmental immunity in tort, extends to school districts unless state statutes specify otherwise. In general, throughout the United States: 1. School districts are protected from tort liability by ap— plication of the principle of common—law rule of governmental immunity. There are noteworthy exceptions to this general rule; such exceptions being confined primarily to the states of California, New York, Wash- ington, and Illinois. 2. Teachers and other school employees are liable for their own torts as the principle of governmental im- munity does not extend to offer individuals protection from liability. Three states, namely, New York, Connec- ticut, and New Jersey, have enacted "save-harmless" statutes which protect school employees from loss due to liability. Wyoming provides such protection on a local option basis. 3. Legal principles and precepts regarding the liability of teachers and other school employees are applicable to school administrative personnel. 188 Teacher negligence is not imputed to the school adminis— trator as the school administrator is neither the employer nor the master of subordinate employees. Fault is a condition of liability under present laws which incorporate the social aim of defining and main- taining societal standards of conduct by punishing con- duct falling below a prescribed standard. The purchase of liability insurance does not permit abrogation of immunity even up to the amount of insurance carried. Exceptions to this general rule may be found in some states, notably Illinois, Kentucky, and Tennessee. The purchase of liability insurance may be held to be an illegal expenditure of school funds if such purchase is not sanctioned by the states' statutes. Most writers on school law feel that governmental immunity in tort is outmoded and indefensible. Court dissatisfac- tion of governmental immunity is evidenced in strong dis- senting court opinions and supported by court exceptions allowing the injured to recover damages in spite of governmental immunity. One's position within a school system offers no protection against liability in and of itself; the nature of an ad- ministrative position may be such that the administrator may not often be the direct cause of negligence. School liabilipy in Michigan.--Michigan follows the prevailing pattern of school liability found throughout the 189 United States. The Michigan court has held that: 1. School districts and their boards of education cannot be held liable for injuries or damages caused by the negligence of its officers, agents, or employees while in the performance of their duties. School non-liability is abrogated by statute where employees are injured and. such injury falls within the application of workmen's compensation laws. State statutes also provides that governmental immunity shall not be a defense to civil action brought against municipal corporations to recover damages resulting from the operation by employees of motor vehicles owned or leased by municipal corporations. The doctrine of governmental immunity from torts has been established by the legislature since 1945 and cannot be abrogated by the court. The purchase of liability insurance by school districts did not constitute a waiver of the defense of govern— mental immunity. Teachers and other school employees may be held liable for their negligence if such negligence results in injury to others. Value of school policies.--School policies, rules, regulations, and operating procedures have been emphasized in the literature as a means of preventing accident, of showing that proper precautions have been employed, and of proving non-negligence. I90 Conclusions In this study, the size of the school district appears unrelated to school policies, practices, regulations, rules and precautions relating to the liability of school districts and/or their employees. The ten questions studied by this investigation involved the following four broad categories: school officials, school program and services, school policies and regulations, and school liability insuring practices. School officials.-~It is concluded that Michigan school administrators and appointed officials: 1. Lack a clear and concise picture of liability as it affects the school district and individual employees of the school district. 2. Are confused as to the nature and extent of liability hazards under existing law. 3. Possess an awareness of a general trend toward greater liability. 4. Take an apprehensive view toward possible and potential school liability hazards. 5. Lean heavily on the advice of insurance agents and the expectation that insurance affords sufficient protection. 6. Have varying perceptions of school liability, however, the official's perception of liability appears unrelated to school policies, regulations, rules, and precautions, 191 due to liability of school districts and/or their employees. Take precautions in school programs and services which they believe may reduce or minimize liability hazards. Have difficulty in distinguishing and identifying areas of liability hazards, i.e., school officials appear unable to distinguish between areas of possible lia- bility hazards where there is factual information on which to make judgments and areas where facts and in- formation on which to make judgments are not available or where liability is uncertain. School program and services.--The second category deals with conclusions advanced concerning Michigan school programs and services. Programs and services in Michigan schools: 1. Are limited and restricted to some degree because of liability. Restrictions were neither extensive nor general and related primarily to field trips, safety patrols, physical education and athletic programs, money raising activities, and the use of school facili— ties by the public. Are circumscribed by hazards, real or imagined, associated with freedom of pupil participation, pupil self-supervision, and the use of non-certificated persons in supervisory roles. Appear to be reinforced along conventional lines by possible liability hazards. 192 Appear to be free from restrictions and limitations where school officials are convinced of the rectitude and desirability of particular programs and services. School policies and regulations.--The third category involves the policies, rules, regulations, and Operating procedures of the school district. The study reveals that: 1. Liability has not generally been the basis for school policy, rules, regulations, and operating procedure in Michigan school districts. Although liability under present law implies a pre— scribed standard of care, this principle has not apparently been translated or adapted into plainly set forth specifics relating to the operation of public school educational programs in Michigan. Insuring practices.——The fourth category involves the insuring practices of Michigan school districts. General liability insurance: 1. Is purchased by approximately three-fourths of Michigan School Districts. Indifference regarding policy coverage, characteristics of insurance, and form of policy indicate a general lack of concern beyond mere purchase of a policy. Does not actually safeguard the injured party. Is over-rated by school officials as a means of meeting the moral obligation to pay for injuries. 193 Is over-rated by school officials as a means of pro- tecting teachers and other school employees from possible liability. Recommendations That clarification of the confusing status of school liability as shown in this study be considered a legislative responsibility. That legislation be passed in Michigan: a. Abrogating governmental non-liability. b. Giving protection to teachers from financial loss due to negligence. (Save-harmless statutes) c. Which impose strict liability as opposed to lia- bility with ”fault" as a condition insofar as liability relates to operation of public schools. d. Granting school districts authority to purchase liability insurance. Such legislation should accompany and be appropriate to legislation clarifying and defining school liability. That school officials, officers, agents, and employees acquire a sound knowledge of their particular state's school tort liability laws. That school policies, operating procedures,and regu— lations recognize tie state'sschool tort liability laws and possible accompanying liability hazards. In Michi— gan, the possibility of school district liability provides an additional premise, secondary to legally 10. 194 defined and recognized liability, for well defined ad- ministrative policies and operating procedures minimizing the hazards of injury. That teacher training institutions include in appropriate education courses a consistent concept of school dis- trict and personal liability. That school board policy reflect the corporate nature of board membership as opposed to individual initiative. That professional education associations promote improved legislation relating to liability. Attempts toward ex- tending school district immunity should be regarded as retrograde. That a periodic review of local school practice be made to eliminate activities and practices which are dangerous, either inherently or in the manner in which they are performed. That a handbook be prepared for the use of school administrators and school personnel. Such a booklet should summarize and review legal principles, statutes, and court decisions bearing on tort liability of school districts and liability of school personnel. Special attention should be given to liability in Michigan. That when general liability insurance is purchased, consideration be given to possible financial savings available by combining all liability coverage under one policy and possible economy in improved purchasing practices. 11. 195 That the Michigan Department of Public Instruction collect statistical information relating to liability insurance simililar in nature to information presently recorded concerning fire insurance coverage carried by local school districts. Suggestions for Further Study A comparative study to determine if non-liability of teachers causes less teacher interest in safety, lowering of standards of conduct, and indifference relating to standards of care for pupils. A more intensive study of general liability insurance purchasing practices designed to investigate possible savings and economies, improve coverage and program~ ming, and identify sound purchasing procedures. APPENDIX A 196 197 SCHOOL LIABILITY SURVEY Lewis C. Wood Schedule 4 INTRODUCTION One of the subjects for debate and discussion at the last winter meeting of the Michigan Association of School Administrators was "school liability." Would you like to know what other school officials are doing about school liability? You can assist in making information regarding school liability available by responding to the investigation I am making on the subject. ' My study is designed to provide information concerning practices and policies of school officials pertaining to liability. It is very important to have your help since your A name was selected among those in a small random sample and thus your cooperation is essential to the success of this study. The device used for obtaining information is an inter~ view using questions and situations involving fictitious cases. Your name will not be used and all answers are confiden- tial. A copy of the summary of the study will be made available to you, if you so desire. GENERAL INFORMATION Name of School District Address Name of Person Interviewed Title Class Perception (Size of Sch. Dist.) (Classification) OCCUPATION OF BOARD MEMBERS: OCCUPATION OF MOST INFLUENTIAL BOARD MEMBERS: 198 PART I. SCHOOL POLICIES The first section of this survey is an inquiry regarding your school policy, rules, standards of conduct, regulations, etc. which may be ineffect in your school district and designed because of liability or to avoid imposition of liability. It is recognized that separation of school policies, rules, and regulations on the basis of a single primary purpose is most difficult, however, I wish to determine what policies, rules, or regulations you have which you feel offers protection against the hazards of liability or designed to provide standards of conduct with liabilty as a basis. 1. First of all, do you have school policies, rules, or regulations pertaining specifically to school district liability or written expressly due to the liability of the school district? Written Unwritten No Identify: 2. Secondly, do you have school policies, rules, or regula- tions with specific provisions or warnings regarding the liability of school personnel or designed because of the possible liability of personnel? Written Unwritten No Identify: 3. Thirdly, I wish to know if you have general school policies, rules, or regulations, rules of conduct, appro- priate care, rules for operation, etc. which though not designed specifically because of liability, however, they may serve this purpose by so orienting programs that negligence will be minimized as a cause of liability. Written Unwritten No Identify: For the next part of the interview please read with me the following fictitious case. (Case 1 given to interviewee on card. 199 PART II: OPINION PERTAINING TO LIABILITY AND LIABILITY INSURANCE Vb Case I: A Micnigan School District sponsored a field trip to Chicago and transported the pupils by a school owned bus and an automobile owned and driven by a faculty member. Each pupil paid fifty cents to help cover transportation costs and the school agreed to reimburse the teacher for her expense based on a per—mileage basis. The school carried an insurance policy on the bus covering public liability, property damage, and comprehen— sive coverage. Each pupil was required before departure to file a form giving parental approval for the trip and waiving any liability for any injury or damage arising as a result of the trip. While in Chicago both the bus and the teacher's car were involved in a three vehicle accident, the third auto- mobile being an Illinois passenger car. A passenger in f“ the Illinois car and a girl on the school bus were seriously injured and all vehicles were damaged in the accident. Now I would like to have you consider this case, not from the standpoint of a jury to determine fault but from the standpoint of a school official who may be concerned with possible liability hazards present in this kind of situa- tion or similar situation. 4. In general, to what extent may the school district be liable in this case? 5. What is your View on the use of the waiver of liability in this case? 6. Might the school district be liable for the injury suf— fered by the girl riding the school bus? 7. If, in this case the teacher was negligent in operation of her car and was the legal cause of the accident, might the school district be liable for damages, as the teacher's car was being used for school purposes at the time of the accident? IO. ll. 12. 13. 200 Do you view the charge of 50% made to help pay trans— portation costs in this case as a liability hazard? Why? You will note that the accident occurred in Illinois. What effect might this have on a possible liability suit? Are you acquainted with any basic differences in school district liability in Illinois as compared to Michigan? Identify: Do you as a school official make any distinction or differentiation between the possible liability of the school district in connection with the use of school vehicles and the possible general liability of the school district in other areas of school operation? Identify: In general, do you view possible liability of bus drivers as individuals a real problem in operation of school buses? Why? To what extent may the school administrator be personally liable in this case? The next part of this interview considers a different type of case. Please read this along with me, as follows: (Card with Case II given to interviewee) Case II. The school district is located in Michigan. A ten-year-old girl was seriously burned when she fell into an unguarded incinerator which actually was little more than a deep depression in the ground on a sloping hillside located in one corner of the school property' in the adjacent vicinity of the school's football field. The girl was attending a football game for which she had paid admission, and during the half—time was attracted to a fire burning in the incinerator and along with other pupils went to the site of the fire. 201 The fire was set by school custodians who were burning refuse from the school‘s fieldhouse and debris from a pre— game homecoming bonfire. Again, I would like to have you consider this case from the standpoint of the school official regarding possible lia— bility hazards present in this situation or similar situ- ations rather than from a legal viewpoint of determining fault. 14. In general, to what extent to you believe the school district may be liable in this case or similar cases? 15. Do you feel that the paying of admission may affect the outcome of a liability suit against the school district? 16. If maintenance of a nuisance was charged in a liability suit, what effect might this have on school district liability? 17. What effect might a change of ”trespass” by the owner of the storage building have on school district liability? 18. Are you acquainted with any cases in Michigan where school districts have been held liable for nuisance or trespass? 19. Do you view the general liability of school districts as a problem to school administrators at the present time? 20. To what extent might the school administrator be personally liable in this case or similar cases? 21. To what extent may the members of the board of education be personally liable in this case or similar cases? 22. To what extent may the school employees, such as janitors and teachers, be held liable in this case or similar cases? 23. What is your opinion regarding the value of liability insurance in covering injuries suffered by school pupils or to the public? In other words, do you feel that if this school district had carried liability 202 insurance that the parents of the injured girl would probably receive payments for damages suffered? 24. If the school district in this case were protected by a general liability insurance contract covering the premises, would this in your opinion, offer protection to school personnel against liability? The next part of the interview considers a different type of situation using a third case. Please read with me as follows: (Card with third case given to interviewee.) Case III. This Michigan School District has a strong, well-organized, in-service education program and during the year, here considered, selected for their topic of study, 'the legal rights and liabilities of school personnel.” Although various sources of information were used, the prim- ary source of information was a booklet authored by a well known writer in the field of school law, designed to acquaint school personnel with some of the legal rights and respon- sibilities of their positions. As a result of the study, .a rather lengthy list of recommendations was made for the guidance of faculty members and a second list of recommendations was made to the school officials and board of education pertaining to possible changes in school policy to minimize the hazards of liability. Recommendations were made in the following areas: Use of confidential material. Duties of non-certificated employees such as teacher—aides and student-teachers. Inadequate supervision due to class size. Supervision of playgrounds. Pupil supervised activities and unassigned pupils. Civil defense and fire drill responsibilities. School camp and summer recreation programs. Safety patrols. Field trips. Supervision and care in classes considered high accident risks. OKOmNIONUT-DUU l'Di—J H 25. In general do you feel that liability is a hazard to school personnel such as teachers and custodians? 26. Do you view the use of confidential material such as material placed in the pupiTs cumulative record a potential liability hazard to school personnel? 27. Do you view inadequate supervision due to class size as a potential liability hazard to personnel? 28. 29. 30. 31. 32. 33- 34. 35- 36. 37. 203 Do you view the improper use of non-certificated em— ployees (such as teacher aids or student teacher aides or student teachers) a potential liability hazard? Do you view inadequate supervision of playgrounds a potential liability hazard? To what extent do you View pupil supervised activities such as pupil supervised study halls and unassigned pupils in the building as liability hazards to staff members? Do you view responsibilities connected with possible civil defense and fire rescue operations as liability hazards to staff members? Do you View school camps and school sponsored recrea- tion programs as potential liability hazards? To what extent do you view ”safety patrols" a liability hazard to staff members? Do you view field trips as a liability hazard to staff members? To what extent do you view classes in shop and manual training as a liability hazard? To what extent do you view classes in science as a liability hazard? To what extent do you view classes in physical education a liability hazard? This completes the portion of the interview dealing with the fictitious cases. Now I would like to ask you some general questions dealing with the possible effects of liability, both personal and corporate, on the school program. 38. 39. Do you believe that liability attaching to the use of school owned vehicles or the hazards of charging for transportation on school trips may be a limiting factor in the use of vehicles and thus limit or restrict edu— cational activities where a means of transportation is necessary for the trip? Why? Do you view liability a limiting factor in community use of school buildings and facilities? 204 40. Do you feel that liability may be a factor in limiting or restricting the school program in any way? 41. Do you feel that liability may be a factor in board decisions not to offer extended public services to the community? 42. To what extent do you view personal liability of staff members a factor in limiting or restricting the scope of the school program? I would now like to ask you a few questions concerning present liability trends in Michigan and the United States. 43. Are you acquainted with the status of liability of school districts and their employees in other states? (If yes) What are the significant differences in liability in those which are different than Michigan in interpretation or law? 44. What do you believe the trend to be in Michigan as to the liability of school districts? More liability Status Quo Less Liability 45. What authority, knowledge, or court decisions do you consider as reason or source for your views concerning the liability of school districts in Michigan? PART III: PRECAUTIONARY PRACTICES AND POLICIES The last part of this interview seeks information as to what precautionary practices your school district has taken against the hazards of liability. First I would like to have you consider whether any precau— tions have been taken in the administration or operation of school programs or activities. To provide a quick guide to the many functions carried out by school districts I have prepared a list which I will read. I would like to have you tell me whether for any of the activities or functions your school district operates whether you have applicable pre- cautions, limitations, or restrictions due to liability, either personal, corporate, or both. 205 Field trips Football fields Charge Admission Driver raining Adult Education Use of school facilities_____ Fire Drill & Civil Defense____ Cafeterias Teacher Aides, etc. Cumulative Records Playground supervision Pupil supervision Athletic Program Recreation program School camp Safety Patrols Student Government Physical Education classes___ Science Classes Shop classes Others 46. Summary of precautions and limitations, etc. in school program. Next I would like to consider insurance as a precaution against liabilityghazards. 47. 48. 49. 50. 51. Do you believe it wise policy for the school district to carry some form of general liability insurance? (If yes, in question 47) Why do you consider it wise policy to purchase general liability insurance? What is your opinion regarding the purchase of general liability insurance protection for school employees from school funds? Have any claims of negligence, liability suits, or claims for reimbursement for injuries been made against your district or its employees in the last ten years? Describe. What source of information is used for advice or counsel regarding the purchase of general liability insurance? 52. 53. 54. 56. 57. 58. 59. 60. 206 If you carry general liability insurance has the insuring company agreed it will not use school immunity as a de- fense in the event of claim or suit? INSURANCE INFORMATION Is insurance purchased on bids Are specifications used What is "name of insured” written in insurance contract? What is the form of insurance written? Comprehensive Comprehensive including Autos Scheduled hazards What form of liability insurance is written on school vehicles? Comprehensive Comprehensive general liability__- Scheduled hazards Coverage and limits of liability insurance: Coverage Limits A. Bodily Injury Liability each person each accident B. Property Damage $ Areas of coverage or exposure. Presmises Products Non-ownership Malpractice Elevator Contractual Owners protective Boiler and Machinery Teams Automobile Notes. BIBLIOGRAPHY Books Allen, F. T., and S. I. Simon. Insurance. Ames: Adams & Co., 1953. 245 pp. American Jurisprudence. "Negligence." Rochester, New York: The Lawyers Co—Operative Publishing Company, l936----. 38:631-1099. Angell,Frank Joseph. Insurance Principles and Practices. New York: The Ronald Press Company, 1959. 894 pp. Black, Henry Campbell. Black's Law Dictionary. St. Paul, Minnesota: West Publishing Co., 1951 ed. 1882 pp. Burke, Finley. A Treatise on the Law of Public Schools. New York: A. S. Barnes and Company, 1880. 154 pp. Chambers, M. M., and D. B. Updike. The Colleges and the Courts 1941-45. Boston: Merrymount Press, 1946} 156‘pp- Corpus Juris. Brooklyn: American Law Book Co., 1932--. Corpus Juris Secundum. ”Insurance." Brooklyn: American Law Book Co., l945--. 44:471-1045. Drury, Robert L. (ed.). Law and the School Superintendent. Cincinnati: The W. H. Anderson Company, 1958. 339 DP. Edmondson, James Bartlett. The Legal and Constitutional Basis of a State School System. Bloomington, Illinois: Public School Publishing Co., 1926. 203 pp. Edwards, Newton. The Courts and the Public Schools. Chicago: The University of Chicago Press, 1933. 591 pp- The Courts and the Public Schools. Rev. ed. Chicago: The University of Chicago Press, 1955. 622 pp. 207 208 Garber, Lee 0. Handbook of School Law. New London: Arthur C. Croft Publications, 1954. 165 pp. (ed.). Law and the School Business Manager. Dan- ville, Illinois: Interstate Printers and Publishers, Inc., 1957. 331 pp- Gauerke, Warren E. Legal and Ethical Responsibilities of School Personnel. Englewood Cliffs, New Jersey: Prentice—Hall, Inc., 1959. 302 pp. Hamilton, Robert R., and Paul R. Mort. The Law and Public Education. Chicago: The Foundation Press, Inc., 1941. 579 pp- , and E. Edmund Reutter, Jr. Legal Aspects of School Board Operation. New York: Bureau of Publica- tions, Teachers College, Columbia University, 1958. 199 PP- Herbert, Alan Patrick. Misleading Cases in the Common Law. 3rd. ed. London: Methuen and Co., Ltd., l928. 176wpp. Holdsworth, William S. History of English Law. 7th rev., v. 1. London: Methuen and Co., Ltd., 1956. 706 pp. Leibee, Howard C. Liability for Accidents in Physical Education, Athletics, Recreation. Ann Arbor, Michigan: University Of Michigan Press, 1952. 71 pp. Linn, Henry H., and Schuyler C. Joyner. Insurance Practices in School Administration. New York: The Ronald Press, 1946. 694 pp. Michigan Reports. Chicago: Callaghan and Co., 1887-1948; Rochester, New York: The Lawyers Co-operative Publishing Co., l949--. Michigan Biennial Report. Lansing, Michigan: Franklin De- Kleine Co. Annual. Mowbray, Albert H., and Ralph H. Blanchard. Insurance. 4th ed. New York: McGraw-Hill Book Co., 1955. 569 pp. National Reporter System. St. Paul: West Publishing Co., l879--; Atlantic Reporter, Northwestern Reporter, Northeastern Reporter, Pacific Reporter, Southeastern Reporter, Southern Reporter, Southwestern Reporter. Noble, M. C. 8., Jr. Pupil Transportation in the United States. Scranton, Pa.: International Textbook Co., 1940. 541 pp. 209 Poe, Arthur Clayton. School Liability for Injuries to Pupils. Contributions to Education No. 828. New York: Bureau of Publications, Teachers College, Columbia University, 1941. 108 pp. Pound, Roscoe. Jurisprudence. St. Paul: West Publishing Co., 1959. v. V, ch. 32. Prosser, William Lloyd. Handbook of the Law of Torts. St. Paul: West Publishing Co., 1941. 1309 pp. . Handbook of the Law of Torts. 2nd. ed. St. Paul: West P blishing Co., 1955. 952 pp. Public and Local Acts offithe Legislature of the State of Michigan. Lansing, Michigan: Franklin DeKleine Co., Annual. Punke, Harold H. The Courts and Public—School Property. Chicago: The University of Chicago Press, 1936. 313 DP- . Law and Liability in Pupil Transportation. Chicago: The University of Chicago Press, 1943. 291 pp. Reeder, Ward G. The Administration of Pupil Transportation. Columbus, Ohio: The Educators Press, 1939. 200 pp. Remmlein, Madaline Kinter. School Law. New York: McGraw- Hill Book Co., Inc., 1950. 376 pp. . The Law and Public School Administration. New York: McGraw—Hill Book Co., Inc., 1953. 271 pp. Rosenfield, Harry N. Liability for School Accidents. New York: Harper and Bros., 1940. 220 pp. Rulipg Case Law. San Francisco: Bancroft-Whitney Co., 1929. 24:604. Seitz, Reynolds C. (ed.). Law and the School Principal. Cincinnati: The W. H. Anderson Co., 1961. 266 pp. Spell, Reginald V. Public Liability Hazards. Indianapolis: The Rough Notes Co., 1956. 453 pp. Spurlock, Clark. Education and the Supreme Court. Urbana, Illinois: University of Illinois Press, 1955. 252 pp. State of Michigan, General School Laws. 1959 rev. Lansing, Michigan: Speaker—Hines and Thomas, Inc., 1960. 462 pp. 210 Trusler, Harry Raymond. Essentials of School Law. Milwaukee: Bruce Publishing Co., 1927. 4478 pp. Vance, William R. Handbook on the Law of Insurance. Rev. by Buist M. Anderson, 3rd ed. St. Paul: West Publishing Co., 1951. 1014 pp. Voorhees, Harvey Cortlandt. The Law and the Public School System of the United States. Boston: Littl, Brown & Co., 1916. 429 pp. Weltzin, Joachim Frederic. The Legal Authority of the American Public School. Frand Forks, North Dakota: The Midwest Book Concern, 1931. 286 pp. Ballentine, James A. Law Dictionary with Prounciations. Rochester, New York: The Lawyers Co—Operative Pub- lishing Co.,1930. 1494 pp. Periodical Articles Bagley, William C. ”The Principals Personal Liability in Case of Accidents to Pupils," School and Society, 50:858-59, December, 1939. . Bress, David G. ”Comparative Negligence: Let Us Hearken to the Call of Progress," American Bar Association Journal, 43:127-130, February, 1957. Bolmeier, Edward C. "Trends in Pupil Transportation Litigation,” The American School Board Journal, 140: 38-40, February, 1960. . "Tort Liability of School Personnel," The American School Board Journal, 136:30—32, March, 1958. Butsch, Russell L. c. "The Law of Libel and Slander as it Affects the Teacher,” Elementary School Journal, 31:44- 51, September, 1930. Carlson, Gordon T. "I'll Be Suing You, Coach," The School Executive, 76:76-78, April, 1957. Chambers, M. M. (ed.) Yearbook of School Law. Published by editor, annual, 1933-1941. . "Legal Responsibility for Accidental Injuries to School Pupils,” The Nation's Schools, 13:43, May, 1934. Davis, Kenneth C. "Tort Liability of Governmental Units,” Minnesota Law Review, 40:751, June, 1956. 2ll Doscher, Nathan, and Nelson Walke. ”The Status of Liability for School Accidents and Its Relationship to the Health Program," Research Quarterly, 23:280-294, October, 1952. Edwards, Newton. "Tort Liability of School Districts," Elementary School Journal, 30:34, September, 1929. Edwards, Walter L. "Teacher and School Law,” The Nation's Schools, 52:39-41, December, 1953. Fuller, Ernest E. "Reasons Given by Courts for School District Immunity," The American School Board Journal, 103:23—25, November, 1951. Galfo, Armand J. "Buses and the Law, Overview, 1:40-41, August, 1960. Garber, Lee 0. (ed.). The Yearbook of School Law. Phila- delphia: Editor, 1950-56; Danville, Illinois: Inter- state Printers and Publishers, Inc., l957--. . "How the Courts are Changing the Education Scene," The Nation's Schools, 69:92-93, January, 1962. "District Liability for BusAccidents," The Nation's Schools, 50:79-80, November, 1952. . "Courts Placing More Emphasis on Save-Harmless Statutes," The Nation's Schools, 59:63-64, June, 1957. . "State Courts Define School Liability," The Nation's Schools, 63:104-110, March, 1959. . "Illinois Court Overthrows Immunity Doctrine," The Nation‘s Schools, 64:70-72, August, 1959. . ”The Case of the Negligent Coach," The Nation's Schools, 59:77-78, May, 1957. . "Abate That Fire Hazard," The Nation's Schools, 63:57-58, February, 1959. . ”Personal Liability of Professional Employees," The Nation's Schools, 53:70—71, January, 1954. . ”Field Trips and Excursions," The Nation's Schools, 56:82-85, September, 1955. "Liability of Districts that Carry Insurance," The Nation's Schools, 60:89-90, October, 1957. 212 Gauerke, Warren E. 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"Negligence in Schools, The American School Board Journal, 132:47~48, May, 1956. Tischendorf, E. w. "Accident Liability of Shop Teachers," Safety Education, 30:1—3, February, 1951. Ware, M. L. "Is the Teacher Liable,” National Education Association Journal, 47:603-604, December, 1958. Weltzin, Joachim Frederic. "New Tendency in the Tort Liability of School Districts," The American School Board Journal, 84:52-53, March, 1932; 84:37—38, April, 1932; 84:31-32, May, 1932; 84:39-40, June, 1932. Bulletins and Reports American Association of School Administrators. School District Liability. Washington, D. C.: The Associa- tion, 1953. 23 pp. American Association of School Administrators, and National Education Association, Research Division. "Insurance and Health Protection for Teachers," Educational Research Service, Circ. no. 5. Washington, D. C.: The National Education Association, May, 1956. 26 pp. Featherston, Glen. 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C.: The Association, annual. Mimeographed. "The Schoolteacher's Day in Court." Washington, D. C.: The Association, annual. Mimeographed. . "Plaintiffs and Defendants—-School Teachers in Court," Research Bulletin of the NationalEducation Association, 36:58-60, April, 1958. . "The Courts Decide-~Rights and Responsibilities of Pupils,” Research Bulletin of the National Educa- tion Association, 36:61—62, April, 1958. . "Status and Practice of Boards of Education," Research Bulletin of the National Education Association, 24:47-83, April, 1946. National Education Association, and National Commission on Safety Education. Who is Liable for Pupil Injuries? Washington, D. C.: The Commission, 1950. 32 pp. National Safety Council. Accident Facts. Chicago: The Council, annually. Michigan Pupil Transportation Handbook. Bul. 431. Lansing, Michigan: Michigan Department of Public Instruction, 1961. 58 pp. Remmlein, Madaline Kinter. Liability of Teacher and School. Personal Growth Leaflet no. 108} Washington, D. C.: Ngtional Education Association, Research Division, n.d. 1 pp. Schaerer, Robert W. The Liability Status of Indiana Public Schools. Bloomington, Indiana: Indiana School Boards Association, Indiana University, 1959. 86 pp. Lamb, Robert L. "Legal Liability of School Boards and Teachers for School Accidents." Ottawa, Ontario: Canadian Teachers' Federation, Research Division, Research Study No. 3, 1959. 76 pp. 215 Smith, Lyndon A. Recent School Law Decisions, circ. no. 4. Bureau of Education. Washington, D. C.: U. S. Govern— ment Printing Office, 1883. 82 pp. U. S. Office of Education. School Transportation Insurance. Pamphlet no. 101. Washington, D. C.: Superintendent of Documents, 1948. 34 pp. Unpublished Materials Barrett, v. F. ”Liability in Athletics in Oregon." Unpub— lished Master's dissertation, The University of Washington, Seattle, 1938. 74 pp. Bowman, Mary B. "Placing of Responsiblity for the Injury of Children at School." 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Constantine, Gus A. "Legal Liability for Injuries Sustained in the Transportation of Public School Pupils.” Unpub— 1ished Doctor's dissertation, Duke University, Durham, North Carolina, 1958. 216 pp. Dice, Clifford O. "Tort Liability of Individual Employees and Officers of School Districts." Unpublished Doctor's dissertation, University of Southern California, Los Angeles, 1937. 305 pp. 216 Doherty, Leo D. "School Transportation Insurance: Cost and Coverage." Unpublished Doctor's dissertation, Teachers College, Columbia University, New York, 1950. 113 pp. Fuller, Edgar. "Tort Liability of School Districts in the United States." Unpublished Doctor's dissertation, Harvard University, Cambridge, 1950. 331 pp. Guley, Marcel. "The Legal Aspects of Injuries in Physical Education and Athletics." Unpublished Doctor's dis- sertation, Syracuse University, Syracuse, 1953. 247 pp. Hessee, Myron A. "Personal Liability of Selected School District Employees and a Plan for Their Protection." Unpublished Doctor's dissertation, University of Southern California, Los Angeles, 1949. 233 pp. Hildebrand, W. 0. (ed.). ”Michigan Agency Bulletin." Lansing, Michigan: Michigan Association of Insurance Agents, July, 1957; February, 1958. Hindle, John H., Jr. "Financial Responsibilities for Injuries of Pupils of Public Elementary and Secondary Schools.” Unpublished Doctor's dissertation, Teachers College, Columbia University, New York, 1954. 211 pp. Hollenback, Warren. "Tort Liability of School Districts as Shown by Court Decisions." Unpublished Master's dis- sertation, University of Pittsburgh, Pittsburgh, 1931. 105 pp- Johnston, J. M. "The Legal Status of the Public School Prin— cipal in the United States.” Unpublished Doctor's dissertation, University of North Carolina,‘Chape1 Hill, 1953- 152 PP- Kigin, Dennis John. "Tort Liability Affecting Shop Teachers with Provisions for Avoiding Accidents and Litigation.” Unpublished Doctor's dissertation, University of Missouri, Columbia, 1959. 209 pp. Lange, Wayne. ”Insurance Quotation" via Hartford Accident and Indemnity Co. South Haven, Michigan: South Haven Agency, March 14, 1962. Mantell, Herm P. ”The Liability of Teachers and Other School Officers in New York State and Proposed New Legislation to Further Their Protection." Unpublished Doctor's dissertation, New York University, New York, 1942. 178 pp- 217 National Bureau of Casualty Underwriters. Data on cost of liability insurance in various states. Ltr. to W. O. Hildebrand, Michigan Association of Insurance Agents, Lansing, Michigan. Ltr. dated February 5, 1960. Pinckney, Charles w. "Liability of Shop Teachers and School Districts for Pupil Injuries in School Shops Resulting in Court Cases in the United States." Unpublished Doctor's dissertation, Pennsylvania State University, State College, 1953. 80 pp. Poe, Arthur Clayton. "School Liabilities for Injuries to Pupils.” Unpublished Doctor's dissertation, Teachers College, Columbia University, New York, 1941. 108 pp. Rosenfield, Harry N. "Liability for School Accidents." An address delivered at the Annual Meeting of the Michigan High School Athletic Association, December 1, 1955. Printing by Representative Council of the Michigan High School Athletic Association, Lansing, Michigan. Scatterfield, Ted J. ”Legal Aspects of Tort Liability in School Districts as Indicated by Recent Court Decisions." Unpublished Doctor's dissertation, Temple University, Philadelphia, 1949. 400 pp. Schaerer, Robert Warren. "The Tort Liability Status of Indiana Public Schools and the Current Liability Insurance Practices of Indiana Public School Corpora- tions.” Unpublished Doctor's dissertation, Indiana University, Bloomington, 1959. 293 pp. Smith, Laurence D. "The Legal Liability of School Districts." Address to Annual Convention of Michigan Association of Insurance Agents, September 16, 1955. Condensed version printed by Michigan Association of Insurance Agents, W. O. Hildebrand, Mgr., Lansing, Michigan, 1955- Spurlock, Clark Paul. ”Education and the United States Supreme Court.” Unpublished Doctor's dissertation, Oregon State College, Corvallis, 1954. 383 pp. Stapp, Sterling. ”Insurance Panel at Convention in Spokane." Washington Association of School Business Officials, November, 1959. Mimeographed. 15 pp. Washington State School DireCtor's Association. ”School Liability Protection.” Olympia, Washington: The Association, 1951. 27 pp. 218 Waterman, Albert D. ”Pupil Transportation in Wyoming." Unpublished Doctor's dissertation, University of Wyoming, Laramie, 1949. 173 pp. Weltzin, Joachim Frederic. ”The Legal Authority of the American Public SchoOl as Developed by a Study of Liability to Damages." Doctor's dissertation, University of North Dakota, Grand Forks, School of Education Bulletin no. 7, 1930. 239 pp. Woodhams, Berthold. Circ. ltr. to presidents of Michigan boards of education, Howell, Michigan. n. d. ”“7 FEB? 100' S m R. \ Av \ R m L Y n S R F. .v. N U E .I A - T"2 {IHINHEIHE}