Tech Directions - January 2009 - (Page 18) hazard, how to monitor exposure, what is acceptable exposure, how to properly handle hazardous materials that they may come into contact with in the instructional facility, and what emergency procedures to use when an accident occurs (Gregson, 1996; Zirkle, 1999). Educators can find more information regarding MSDS and the Right to Know at the National Institute for Occupational Safety and Health (NIOSH) web site, www.cdc.gov/niosh/topics/ chemical-safety/default.html#msds. Additional excellent information can be found at the NIOSH Safety Checklist Program for Schools web site: www.cdc.gov/niosh/docs/2004101/default.html. You’ll find many additional links provided at the NIOSH site that can assist in developing a comprehensive safety plan. The information available at the NIOSH sites will prove invaluable in developing many of the risk management strategies that I describe below. CTE Educators and Liability Even with a comprehensive safety plan in place, the possibility for accidents and subsequent liability must be considered in all CTE programs (Crosby, 1993). Liability is broadly defined as “the state of being responsible by law for damages stemming from pupil injuries (Kigin, 1983, p. 9). According to Kigin (1983), if a student is injured in a CTE facility, the instructor may be declared negligent and, thus, liable for a tort. The term tort describes “an act that injures someone and for which the injured person may sue the wrongdoer for damages” (Schimmel, Fischer, & Stellman, 2008, p. 32). Gathercoal and Stern (1987) further indicate that “tort actions are brought by individuals to compensate for harm caused by the unreasonable conduct of others” (p. 6). There are several grounds for torts. However, negligence holds the greatest potential as grounds for action involving accidents and injuries in CTE facilities. From a legal perspective, “a person is negligent when, without intending any wrong, he or she commits an act or fails to act to prevent an occurrence that under the circumstances an ordinary prudent person ought reasonably to foresee will expose another person to unreasonable risk of harm” (Gathercoal & Stern, 1987, p. 7). Said another way, Kigin (1983) summarizes negligence as “the failure to exercise due care” (p.24). Gathercoal and Stern further indicate that to find someone negligent, the plaintiff must allege and prove: 1. A duty on the part of the actor [instructor] to protect others against unreasonable risks. 2. A failure on the part of the actor [instructor] to exercise a standard of care commensurate with the risks involved (breach of the duty). 3. That the conduct of the actor [instructor] is the proximate cause or legal cause of the injury. In other words, a causal connection must exist between the act and the resulting injury. 4. That injury, actual loss, or damage result from the act (p. 7). When applying the legal concept of negligence, it must be first established whether or not the instructor has a duty to protect students from harm. This is usually easily established, since the students are enrolled in the course and under the instructor’s supervision. Most important, for negligence to exist, a legal duty must be formed between the instructor and the injured person. The standard of care test considers whether or not the instructor’s performance reflects what a reasonably prudent CTE educator would have foreseen and provided for under the same or similar circumstances. The third element of negligence, the proximate or legal cause of the injury, considers whether the instructor’s falling below the profession’s standard was the cause of or reason for the injury, loss, or damage, which is the fourth element of liability. According to Gathercoal and Stern (1987), all four elements must be alleged and proven to hold the instructor liable for the student’s injury. In other words, if a CTE educator has a legal duty to protect the student, fails to meet the standard of a reasonable CTE professional, and in so doing causes an injury to a student, the jury must find the instructor negligent. While not an exhaustive list, Storm (1993, p. 86) lists the following conditions under which instructors would likely be considered negligent and, therefore, held liable in the event of an accident: 1. The instructor leaves the students in the laboratory unsupervised. 2. The instructor leaves the laboratory with an unqualified person in charge of the class. 3. The instructor sends a student outside the lab to perform hazardous activity without acceptable supervision. 4. The instructor permits a student with limited physical or mental ability to use hazardous equipment. 5. The instructor fails to keep written reports of accidents. 6. The instructor fails to obtain written statements from witnesses of accidents. 7. The instructor fails to provide proper safety instruction. 8. The instructor fails to inspect equipment before permitting operation. 9. The instructor fails to enforce laboratory safety rules. 10. The instructor removes or modifies factory-installed safety devices on instructional equipment. 11. The laboratory lacks adequate safety devices and safeguards. 12. The laboratory lacks well-constructed storage racks, shelves, or both. 13. Students used unapproved equipment (students’ own or instructor’s) in the lab. 14. Students work in the lab after or before regular class periods without acceptable supervision. Strategies for Minimizing Liability As previously noted, a comprehensive plan for safety is extremely important. In most liability cases, instructors must show evidence of 18 techdirections ◆ JANUARY 2009 http://www.cdc.gov/niosh/topics/chemical-safety/default.html#msds http://www.cdc.gov/niosh/topics/chemical-safety/default.html#msds http://www.cdc.gov/niosh/docs/2004-101/default.html http://www.cdc.gov/niosh/docs/2004-101/default.html
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