The Legal Ramifications of School Violence

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SchoolViolence

The stabbings at Franklin Regional Senior High in Murrysville, PA, as I am sure it did many people, got me thinking. As a human being (as in all cases of school violence) this tragedy had me wondering why this happens, the father in me fearing what lay in store for my boys when the time comes for them to go to school, and, of course, the lawyer in me wondering what the legal ramifications would be from the fallout of such a tragedy. From my point of view, never having had to endure such a traumatic event, I can only assume that the people involved are left asking questions like “Could the school have somehow prevented this?” or “Did parenting or lack thereof play some sort of role leading to this?” the gut reaction, of course, being whether or not the parents or the school on some level should be held accountable for the action of the student who carried out this horrific plan.

This post, of course, does not assume that either a parent or school should be held accountable or did something to be held accountable in Murrysville. I make no determination regarding the fault of the parents of the attacker or the school district in this particular case and only attempt to answer the following questions in terms of possible legal action: (1) What if there was a situation where a parent or school employee knew of a potential threat to the safety of the students at a particular school and failed to act? And (2) What if a student was injured by a third party as a result of negligent supervision by a parent or teacher?

Liability of a School District for the Tortious Conduct of a Student

Local agencies (including schools and school districts) and their employees are afforded governmental immunity pursuant to 42 Pa.C.S. § 8541. That section provides: “Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.”

42 Pa.C.S.A. § 8542 covers the exceptions to immunity. While there are eight exceptions to the governmental immunity set forth in 42 Pa.C.S. § 8541, only one of the exceptions seems to apply to incidents of school violence. The relevant portions of 42 Pa.C.S.A. § 8542 state:

(a) Liability imposed.–A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):

(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and

(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.

(b) Acts which may impose liability.–The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

(3) Real property.–The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency.

This has been called the “real estate” exception. Unfortunately, the “real estate” exception has historically been narrowly construed. In Vann v. Board of Education, School District of Philadelphia, 76 Pa.Commonwealth Ct. 604, 464 A.2d 684 (1982), the court held that this exception to immunity imposes liability only for negligence which makes government-owned property unsafe for the activities for which it is regularly used, for which it is intended to be used, or for which it may be reasonably foreseen to be used. Vann, 76 Pa.Commonwealth Ct. at 60708, 464 A.2d at 686. In Vann the court found that a school district should not be held liable for the beating of a student in an unlighted area of the school ground because this violent act was not a reasonably foreseeable use of school property.

In Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987) the Supreme Court weighed in on the issue. In Mascaro, the supreme court held that the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute’s scope of liability. Id. at 363, 523 A.2d at 1124 (emphasis in original). The Supreme Court in Mascaro reasoned that it was outside the statute’s scope of liability because the acts of others are expressly excluded in §8541 and are not discussed in any of the eight exceptions set forth in §8542.

In short, there would be no recourse against a school, school district or school employee in the Commonwealth of Pennsylvania in a situation similar to that of Murrysville.

Liability of Parents for the Tortious Conduct of Their Child

In Pennsylvania, The Parental Liability Act, 23 Pa.C.S. §§ 5501, et seq. sets forth a means for holding parents liable for the tortious acts of their children. The liability of the parents under the Act requires a finding that the child (one under 18 years of age) committed a willful tortious act resulting in injury. Specifically, Any parent whose child is found liable or is adjudged guilty by a court of competent jurisdiction of a tortious act shall be liable to the person who suffers the injury to the extent set forth in this chapter. 23 Pa.C.S. § 5502. The only problem is the monetary limits of liability which caps parental liability at (1) $1,000 for injuries suffered by one person as a result of one tortious act or continuous series of tortious acts, or (2) $2,500 regardless of the number of persons who suffer injury as a result of one tortious act or continuous series of tortious acts. 23 Pa.C.S. § 5505. What does this mean? In the case of the Murrysville stabbings, the parents of the attacker would be held liable to the victims for a total of $2,500 or, to put it another away, approximately $119 for each of the 21 people injured in the attack. It is important to note that liability under the Act attaches with a finding of guilty and does not consider whether or not the parents knew or should have know of a propensity for violence.

The liability of the parents would not necessarily be limited to the Parental Liability Act. The liability imposed upon parents by the Act does not limit the common-law liability of parents for damages caused by a child. 23 Pa.C.S. § 5509.

With regard to common-law liability, the general rule is that the mere relation of a parent and child imposes no liability upon parents. Frey v. Smith, 454 Pa. Super. 242, 685 A.2d 169 (1996). Exceptions to the general rule exist in that parents may be liable where the act of a child is done as the agent of the parents or is the result of independent negligence of the parent. Condel v. Savo, 350 Pa. 350, 39 A.2d 51 (1944). Independent negligence may be found where the parents have notice of a dangerous habit of a child and fail to protect others from the danger. Id.

Essentially, a parent’s duty arises when a parent at the relevant time knows or should know of the need to exercise parental control and has the ability and opportunity to do so. K.H. v. J.R., 573 Pa. 481, 498, 826 A.2d 863, 874 (2003). If the injury ought to have been foreseen by the parents, their negligence is the proximate cause of the injury. J.H. ex rel. Hoffman v. Pellak, 764 A.2d 64, 66 (Pa. Super. 2000). Parents, therefore, may be liable for the torts of their child where negligence on the part of the parents makes the injury possible. Id. For example, if there is a propensity for violence and the parents fail to take action, the parents can be liable. Or if the child has some sort of psychotic disorder for which medication was prescribed and the parents fail to monitor the taking of the medication or fail to make the medication available the parents can be held liable. It seems like common sense but the law is clearly lacking. I am not advocating that parents should be held liable for negligent supervision in all situations of school violence. I am merely pointing out that the law does not set the bar very high for parents. There is certainly a better chance of success against parents then there would be against the school. However, it is still a difficult task attempting to hold the parents responsible for the violent acts of their children.

I may have fairly responded to the questions I posed at the beginning of this post, but in situations like this there are so many more questions left unanswered. I have so much hope for the future of my boys. Hope that is, unfortunately, tempered by situations like this.

 

Permission Granted?

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PermissionGranted

On St. Patrick’s Day, many people celebrate by attending parties, parades or bar crawls…and, of course, they drink. I am sure many people will never think twice when letting friends or relatives use their vehicle on such occasions. In addition to the regrettable video or photograph posted to Youtube, Facebook or Instagram, this can result in DUI’s, arrests for public intoxication and motor vehicle accidents. When someone asks to use your vehicle, whether it is a holiday or not, you may not even give it a thought before letting them and that could prove costly.

Most people probably think as long as the driver has permission to use the vehicle there will be coverage under the vehicle’s insurance policy or the driver’s insurance policy. That is not necessarily the case. Your policy may not provide coverage for permissive use or may only provide limited coverage for permissive use and the driver’s policy may not provide coverage for driving someone else’s vehicle. Therefore, it is extremely important to know what your insurance policy says about permissive use before allowing anyone else to use your vehicle.

As you might expect, many (if not all) policies also have what are called “non-permissive use” exclusions allowing insurance companies to deny coverage in situations where the driver did not have permission from the named insured to be using the vehicle at the time of the incident. The primary issues in these cases are: (1) whether or not the driver had express or implied permission; and (2) if so, whether or not the scope of permission was exceeded at the time of the accident.

General Statement of the Law

Of all the case law I reviewed, generally, the law in Pennsylvania relative to permissive/non-permissive use was best summarized in Nationwide Mutual Ins. Co. v. Cummings, 652 A. 2d 1338 (Sup. Ct. 1994):

Whether a user of an automobile has the permission necessary to elevate that user to the status of an additional insured depends upon the facts and circumstances of each case in light of the underlying policy language. See e.g. Federal Kemper Ins. Co. v. Neary, (citation omitted). The owner’s permission to use an automobile may either be expressed or implied. Id. “Implied permission may arise from the relationship of the parties or by virtue of a course of conduct in which the parties have mutually acquiesced. Id. (citing Brower v. Employers’ Liability Assurance Co. Ltd., (citation omitted); Esmond v. Liscio, (citation omitted). “However, ‘permission’ requires something more than mere sufferance or tolerance without taking steps to prevent the use of the automobile, and permission cannot be implied from possession and use of the automobile without the knowledge of the named insured.” St. Farm Mut. Ins. Co. v. Judge, (citation omitted); Federal Kemper Ins. Co. v. Neary, (citation omitted)(quoting Blashfield, Automobile Law and Practice, § 315.10 at 608) (emphasis added).

Our focus, then, is not directed to the actions of the ultimate user of the auto, but rather, “whether the named insured said or did something that warranted the belief that the ensuing use was with his consent. There must be ‘a connection made’ with the named insured’s own conduct; [mere] proof of ‘acts, circumstances, and facts, such as continued use of the car,’ will be insufficient ‘unless they attach themselves in some way to the acts’ of the named insured.” Id.; Belas v. Melanovich, 372 A.2d 478, 484 (1977) (quoting Beatty v. Hoff, 114 A.2d 173, 174 (1955))(emphasis added).

In cases involving implied permission conduct of the named insured will be critical and it will not be sufficient to imply permission simply from use of the vehicle. In cases involving express permission, it is pretty straightforward when a driver is told not to use the vehicle. The problem arises when a driver is given express permission to use a vehicle for a specific purpose and deviates from that purpose and during the deviation an accident occurs.

Substantial v. Inconsequential Deviation

One other consideration, which could prove to be the central issue in any case involving permissive/non-permissive use is whether or not the use of the vehicle at the time of the accident amounted to a substantial or inconsequential deviation from the permission granted. In permissive use cases you have to determine whether the permission was limited or unlimited and, if limited, whether it was substantially exceeded. Freshkorn v. Marietta, 29 A.2d 15 (1942). Slight and inconsequential deviations will not annul coverage. Id. The case I found discussing deviation from permission was General Accident Ins. Co. v. Margerum, 544 A.2d 512 (Sup. Ct. 1988). In General Accident, an employer allowed one of his employees to use a company van under certain restrictions: 1) The van was to be used solely for commuting between home and work; 2) Margerum was not permitted to drink and drive; and 3) the van was not to be used for personal reasons. Margerum asked for permission to drive the van to a wedding. Permission was granted so long as he did not drive it to the wedding and, once again, so long as he did not drink and drive. After the wedding, Margerum drove the van home and got a ride to and from the reception where he drank alcohol. After he returned home, he packed his work clothes and set off for his fiancee’s residence from where he intended to leave for work the following morning. While driving to his fiancée’s residence he struck and killed a pedestrian.

The Superior Court held that the trial court erred in concluding there was no substantial deviation from the insured’s permission when the driver violated an express specific restriction on the use of the van (drinking and driving).

Conclusion

As indicated above, before you consider allowing someone not named as an insured on your insurance policy to use your vehicle check the language of your policy so you the whether or not coverage will be provided for permissive use. Complying with the provisions of your insurance policy will always keep you insurable and help to prevent an increase in your insurance premiums. Assuming there is language providing for coverage in situations of permissive use, you will want to expressly provide permission leaving no doubt as to the purpose for which the vehicle is to be used (i.e. go to the store, get milk, come right back and do not make any other stops). You do not want to put your personal assets at risk because you were careless in giving permission to use your vehicle without limitation.

Mr. Clancy goes to Washington … Pennsylvania

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As many of you know and for those that do not, my family and I are in the midst of a pretty big life change. Ok so maybe that is a grossly understated way of putting it. Quitting your jobs with two young boys to move to another part of the country and basically start over is not something most people do. I have been fortunate to have friends and family say how proud they are of me and what I am doing but I also see the look in their eyes and know that in the back of their minds they are saying you’re crazy! And Why on earth are you doing this? So, I guess it does bear some explanation.

For the past eight plus years, my wife and I have lived in Wheaton, IL. I was an attorney commuting almost everyday to one of the best cities in the world and she has been a special ed teacher in one of the best school districts in the country. We live in a pretty typical house in a nice neighborhood. We literally have a white picket fence. When we had kids it became clear that something was missing. Me. We hear talk of having a good work-life balance which is an especially difficult achievement for attorneys. I had a pretty good work-life balance for an attorney that commuted to the big city. No real problems with getting time off, some flexibility with my schedule and understanding bosses. I made pretty good money. I worked hard and I was praised for the work that I did by the partners at the firm and my clients. But it was still not a good work-life balance for ME. I generally left each day at 6:30 a.m. and did not get home until at least 6:30 p.m., sometimes later. That meant most days I was not there when the boys woke up each day and I would only have about an hour each night to spend with my family and some nights I would not get home until after the boys were in bed. For someone like me who wants to be a good husband, father and provider, it started to take a toll.

One day, a couple of years ago, my wife said she wanted to move back home and she said it almost as if she knew it probably might not happen. The answer “Yes” came forth surprisingly quick and surprisingly easy. We knew it would be a lot of work and add some stress to our lives. I did what I needed to do. I got my PA and WV licenses and interviewed for jobs but the market was tight and all the jobs I was interviewing for were very similar to the one I was leaving. There would be a commute, billable hours, long days, etc. Then, like an epiphany, the idea of going out on my own presented itself. I was so excited about it you would have thought I was the first person to ever come up with this idea. All of the pieces started falling into place. A couple attorneys in the area said they would refer some work to me. We had a place to stay. Office space in a good location was available. In a matter of a couple of months, after almost two years of job-hunting (virtually in secret), I gave my notice at work and started planning my new endeavor. The idea of being my own boss was just too much to pass up.

We decided that I would head to Washington, PA this past January and that my wife would stay behind with the boys and finish out the school year so I could have some time to figure things out without the “distraction” that comes with parenting. I use the term distraction, not in a negative way, but more like an I want to be home with my family instead of at the office sort of way. That has been, by far, the most difficult part of this journey. I miss my wife. I miss my boys. They do something new every day and I am not there to see it. But I was not there to see it before and this will only last for a couple more months. Once they get here, I will be able to see them every morning before I go to work and I will be there each night before they good to bed. This I promise you.

So when someone asks me why we are doing this and why Washington, Pennsylvania, I respond by saying things like it is a good opportunity for me and/or so our family can be closer to my wife’s family and they will say “Good for you” or ”I’m proud of you”. And when I see that look in their eyes when they say those things, I will smile because in the back of my mind I know I am doing this for one simple reason:

Brett Clancy and Family

Would I really want it any other way?