NEGLIGENCE AND THE DUTIES OF A TEACHER DEFINITION OF NEGLIGENCE Conduct that falls below a standard of care established by laws to protect others against unreasonable harm. THE PRUDENT PERSON PRINCIPLE If the standard of care has not been established by statute, the action or inaction of an individual will be measured against what a hypothetical, reasonable and prudent person would have done under the same circumstances. FORSEEABILITY The prudent and safety-conscious science teacher anticipates the potential risk of an investigation or field study and takes steps to minimize the risks. One important means of minimizing risk is to provide training in the safe handling of reagents, animals, plants and microorganisms. Instruction should also include appropriate procedures to follow if an accident, fire or other incident occurs. DUTIES OF A TEACHER The teacher has three basic duties related to the concept of negligence: 1. Duty of Instruction? The teacher must provide complete instructions as to the procedures, proper conduct and risks to students prior to their working in the laboratory and before investigation;? This instruction must be documented;? Students knowledge and skills in laboratory safety should be assessed. 2. Duty of Supervision? The teacher must supervise students working in the laboratory at all times, to correct their procedures and conduct as needed;? Students who are unable or unwilling to follow safety-related rules or demonstrate reasonable and prudent conduct should not be allowed to enter the laboratory. 1
3. Duty of Maintenance? The teachers must properly maintain the science facilities and all equipment and supplies used by students;? Precautions should be taken by inspecting, testing and correcting any needed repairs to equipment prior to students use;? Unsafe equipment, supplies and facilities which cannot be corrected should not be used by students and must be reported to the school administration. NOTE: OSHA and L&I requirements pertaining to chemical safety are not all-inclusive. Science teachers and school officials need to be familiar with other state regulations and local ordinances that are pertinent. This includes chemical waste management, such as local codes for disposal in landfills or into sewers, fire codes and health department regulations. Schools must inform employees of: EMPLOYEE INFORMATION AND TRAINING 1. Requirements of the Hazard Communication Standard. 2. Where hazardous chemicals are present. 3. Where the school keeps hazard evaluation procedures, written programs, hazardous chemical lists and the required MSDSs. Employee training must include: 1. How the communication program is implemented. 2. How to read and interpret labels and MSDSs. 3. Physical and health hazards of chemicals. 4. Protective measures which employees can take. 5. Methods to detect the presence or release of hazardous chemicals. PUBLIC SCHOOL EMPLOYEE RIGHTS The Right-to-Know law affords public school employees a number of rights: 1. Employees may request in writing, and must receive information in response, concerning the hazards of toxic substances in their workplace. 2. An employee may refuse to work with a toxic substance if he/she has requested information and not received a written reply within 72 hours of its receipt by the employer. 2
3. An employee may exercise any right related to the Right-to-Know law without fear of discrimination. 4. An employee must not be required to waive any such rights as a condition of employment. 5. If discrimination occurs, the employee may file a complaint with the state labor department. TYPES OF NEGLIGENCE 1. Malfeasance doing what should not have been done. Example: Instructing students to use benzene or carbon tetrachloride in solubility experiments. 2. Misfeasance performing a lawful act improperly. Example: Instructing students or pour water into a beaker of sulfuric acid to prepare a more dilute solution. 3. Nonfeasance Failing to do what should be done. Example: Allowing students to perform flame tests without wearing safety goggles. PRUDENT PRACTICES TO REDUCE TEACHER LIABILITY 1. Develop a safety plan and put it in writing, then circulate it to superiors. 2. Keep records of your activities. Demonstrate that you are progressing through points on the safety plan. 3. Document all accidents and the actions you took in response. 4. Keep records of prior activities. 5. Conduct regular inspections of work area, identifying potential problems. Inform supervisors of problems and actions that would correct hem. Do this in writing. 6. Assume responsibility by:? Selecting safe experiments? Explaining safe practices to students? Maintaining discipline? Not delegating authority 7. Anticipate potential hazards and eliminate them before you suffer adverse consequences. HOW TO AVOID BEING SUED 1.??Have the student sign a contract/consent form????????(add, yes or no) at the beginning of the class term. 3
2. Know the hazards before you do the experiment. 3. Determine beforehand what is the worst thing that could possibly happen during the experiment. 4. Determine what you must do to be prepared. 5. Eliminate as many of the controllable factors as possible. COMMON DEFENSES IN NEGLIGENCE SUITS Duty of Care: Teacher must have owed a duty of care to the student; common law has established such a duty. Standard of Care: Teacher must have failed to exercise an appropriate standard of care; a reasonable and prudent person is expected to anticipate the possible harmful results of his or her actions or inactions ( Concept of Forseeability ). Proximate Cause: Teacher s negligence must be the substantial cause of the student s injury. Actual Loss or Injury: Teacher s negligence must have resulted in a proven injury or loss to the student. NOTE: To avoid liability for an alleged negligent act, the teacher may try to show that one or more of the preceding elements were not present. However, more common defenses include the following: Contributory Negligence: Showing that the student s failure to exercise the required degree of care was the direct cause of injury. Comparative Negligence: Requiring the court or jury to apportion negligence among the plaintiff(s) and defendant(s) and adjusting the amount of the award accordingly. This concept is replacing contributory negligence. Assumption of Risk: Showing that the student knew and accepted the risk involved. lpm/mydocs/l&i/neg&duties 4
ENVIRONMENTAL STATUTES Clean Air Act Clean Water Act Comprehensive Environmental Response, Compensation and Liability Act Federal Insecticide, Fungicide and Rodenticide Act National Environmental Policy Act Resource Conservation and Recovery Act Safe Drinking Water Act OSHA: WORKER HEALTH AND SAFETY OSHA Regulates Many Aspects of Laboratory Safety: Ventilation Hazardous Materials (e.g. compressed gases, combustible liquids) Personal Protective Equipment Medical First Aid Electrical Toxic and Hazardous Substances Solid Waste Disposal Act Superfund Amendments and Reauthorization Act Toxic Substances Control Act 5