Dear Legal Mailbag:
As the Dean of Students at Ford E. Yanni High School, I am a little worried. The pandemic has forced us to establish new school procedures. In combination, we have attempted to ensure safety during transitions by: moving to a block schedule, which limits the number of transitions that are made in our hallways, maintaining one-way traffic hallways to decrease the possibility of air exchange, and, of course, requiring students to wear their masks properly.
Block scheduling has forced us to give each student an 8th class in what had previously been a 7 period schedule. In most cases, we give a Study Hall in either the Block 1 or Block 4 position on either the student’s A schedule or B schedule day. This provided us the opportunity to give students late arrival times or early dismissals (sometimes both).
While this plan has allowed us to limit the number of students that are in our building for 50% of the scheduled day, it has caused an entirely new concern. With so many authorized students coming and going in and out of our building, it has made it really easy for students to slip out a side door and catch an early ride home with friends. When we become aware that someone has been successful in implementing their well-thought-out escape plan, we first call the local Police Department and then make a phone call home.
My concern is that these calls are after the fact, and the student is roaming the streets unsupervised in the meantime. Considering the in loco parentis responsibilities that we hold, what liability would we have if a student leaves our building unauthorized and then experiences some form of injury?
Dr. Justin Gohen-Loco
Dear Dr. Gohen-Loco:
Thank you for a great question. Interestingly, the Connecticut Supreme Court decided a case with very similar facts in favor of the school district. But before we get there, your question invites a brief review of liability issues in the school setting.
As a general rule, school officials enjoy governmental immunity from liability when they exercise discretion in dealing with students and others. The concept of governmental immunity derives from the doctrine of sovereign immunity, which has come down through the ages: “The king can do no wrong” or, as the cognoscente like to say, “maxim rex non potest peccare.”
In today’s world, the State of Connecticut has sovereign immunity, and it can only be sued with its permission. Other governmental entities, such as school districts, are not so fortunate, but they do enjoy governmental immunity. The big difference is that governmental immunity is not absolute, and school districts can be held liable in certain circumstances. Such circumstances include malicious acts and situations of statutory abrogation, i.e., when a statute expressly permits claims. For example, Conn. Gen. Stat. §52-557 abrogates governmental immunity and permits claims against school districts for injuries students may suffer on district-provided transportation to and from school.
Since 1994, school officials have had to deal with another exception to governmental immunity. Such immunity may be lost when there is a risk of imminent harm to an identifiable class of persons, which includes students in school. Burns v. Stamford Board of Education, 228 Conn. 640 (1994). In 2014, the Connecticut Supreme Court clarified (and limited) when this exception to governmental immunity applies. In Hayes v. City of Middletown, 314 Conn. 303 (2014), the court ruled that a harm should be considered “imminent” only when “it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm.” Even as clarified, however, this exception to governmental immunity is still a problem for school officials when students are injured in school. Whether the exception applies will depend on the facts of the case, which sometimes makes a trial necessary to determine whether this standard for liability was or was not met in a particular case.
Turning now to the situation you raise at Ford E. Yanni High School, Legal Mailbag predicts that school districts will maintain their governmental immunity if students sneak off-campus during a transition, are subsequently injured, and sue. Twenty years ago last week, the Connecticut Supreme Court decided that a school district was not liable for fatal injuries that a student suffered after leaving campus under the district’s open campus policy because adopting that policy was a discretionary act. Heigl v. Board of Education of the Town of New Canaan, 218 Conn. 1 (1991). In the Burns and Hayes cases described above, this decision was criticized in light of the new “risk of imminent harm to an identifiable class of persons” exception to governmental immunity. However, even under the new standard, it is hard to see how the school district would be liable for injuries a student suffers off-campus after leaving without permission. A student being loose in the community when he or she should be in school should not be considered a “dangerous condition . . . so likely to cause harm that [school officials would have] a clear and unequivocal duty to act immediately to prevent the harm.”
In sum, do your best and make sure that the district’s liability insurance is up to date. However, don’t presume that the district will be liable for injuries a high school student may suffer in the community after leaving school grounds.
Originally appeared in the CAS Weekly Newsletter.