Tech Directions - January 2009 - (Page 20) However, Hall and Marsh do point out that because of Tech Prep agreements and other similar collaborative endeavors involving postsecondary institutions and secondary students, the possibility of younger, less mature students in a postsecondary classroom can exist. Another concept that has some relationship to in loco parentis is contributory negligence. This concept suggests that the pupil’s own negligent action contributed to his or her injury. However, most experts agree that the defense of contributory negligence is often of little value when a minor is involved. Again, when courts are examining the facts related to a claim of negligence, consideration is given to the individual’s age, maturity, and experience. As a result, since a “higher duty of care is required toward children than toward adults” (Hall & Marsh, 2003, p. 73), minors are rarely found responsible for contributory negligence. However, in some cases, especially dealing with injuries involving postsecondary students, the doctrine of comparative negligence is considered. “Comparative negligence allows juries to find the degree to which each party is negligent, and it authorizes recovery based on the relative degree of fault” (Gathercoal & Stern, 1987, p. 9). For example, a student who was slightly careless might be found 25% negligent, and as a result the instructor and institution would have to pay 75% of the damages (Gathercoal & Stern, 1987). Finally, CTE educators should consider the concept of assumption of risk. According to Hall and Marsh (2003), “The assumption of risk doctrine is that one who engages in an activity that involves a risk that is, or should be, obvious is barred from recovering against another because he or she is deemed to have assumed the risks inherent in the activity” (p. 74). However, an assumption of risk defense, even when releases and waivers have been signed, is always considered in light of the age, maturity, experience, and familiarity with the risk, of the injured party. When dealing with minors, it is often difficult to prove that the student fully understood all the risks involved in a certain operation or procedure. Again, it is worth repeating “a higher duty of care is required toward children than toward adults” (Hall & Marsh, 2003, p. 73). Also, assumption of risk is usually not a viable defense to a negligence claim if the instructor in fact fell below the standard of care (Gathercoal & Stern, 1987). sociation of Educators (NCAE, 2003) states that the Teacher Protection Act does not provide school personnel with immunity from numerous other potential legal actions, including those in which a student is “…injured in shop [a CTE laboratory] class” (¶ 5). Risk Management According to Hall and Marsh (2003), risk management is “the process of preventing, or at least minimizing, harm or loss to a school, program, instructor, or student” (p. 81). For educational institutions, the benefits of comprehensive risk management are significant. Kaplin and Lee (2006) report that risk management provides financial stability for an institution, can improve morale and employee performance by reducing worries about liability, and gives the institution an opportunity to emphasize its concern regarding the potential for injuries to third parties. The key elements of an institution’s comprehensive risk management plan must include strategies that address risk avoidance, risk control, risk transfer, and risk retention (Kaplin & Lee, 2006). To be sure, risk avoidance is the best method for reducing liability. This is best accomplished, as stated earlier, by having a comprehensive plan for safety and following it and through the use of facility safety checklists. However, risk avoidance, which involves eliminating the risk, is not always practical (Kaplin & Lee, 2006). Therefore, an institution should investigate methods of risk control, which has as its goal reducing “the frequency or severity of potential exposures to liability” (Kaplin & Lee, 2006, p. 151). Next, institutions can manage liability through methods of risk transfer. Risk transfer approaches include purchasing liability insurance, executing “hold-harmless” and “indemnification” contracts, and the use of liability releases and waivers (Kaplin & Lee, 2006). However, it is important to note that the transfer of risk is not a universal remedy for institutions facing litigation. Indeed, there have been several court cases highlighting the exceptions and exclusions Immunity Defenses Some educators have been lead to believe that due to “government” or “sovereign” immunity they are shielded from lawsuits. Hall and Marsh (2003) explain that sovereign immunity is a concept that has its roots in English law suggesting that “the king could do no wrong.” Since the American system of law was initially adapted from England, the notion of governmental immunity was extended to certain entities including the education sector. However, as Hall and Marsh add, over time Congress and many states have enacted legislation that narrowly defines the government’s immunity and have subjected it to numerous exceptions. Also, Schimmel, Fischer, and Stelleman (2008) point out that even in states where government immunity may still be a viable defense, “students may sue individual teachers for their negligence” (p. 38). One final enactment regarding immunity worthy of mention is a provision in the No Child Left Behind (NCLB) Act called the Paul D. Coverdell Teacher Protection Act. While the words may sound comforting, the reality is that this enactment provides very narrow immunity from liability for K-12 teachers, administrators, and other school personnel “for injuring a student, but only if the injury occurs while the employee is engaged in efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school” (NCAE, 2003, ¶ 3). In fact, the North Carolina As- 20 techdirections ◆ JANUARY 2009
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