This document discusses tort law and liability as they relate to school districts and employees. It summarizes that school districts are generally immune from tort liability except in cases involving motor vehicle accidents. Professional school employees are also not personally liable for actions taken within the scope of their employment that involve judgment or discretion, with exceptions for excessive force or negligence resulting in injury to students. The document outlines specific court cases to illustrate how these principles have been applied.

1. Chapter 10

3.  Criminal Law
- Crimes against the state
 Civil Law
- Lawsuit between two parties usually involving
monetary damages

4. State Torts are civil wrongs causing the injured
party to go to court seeking damages
• Common State Torts - defamation, negligence (most
common in educational setting), assault, and invasion of
privacy are common examples
Federal Torts involve the infringement of a
person’s constitutional or federal statutory
rights.

5. Governmental Entities are generally immune
from liability
 Although governmental entities can be held liable for negligent
conditions of public property, school districts can only be held
liable under the Texas Tort Claims Act when injury results from
the negligent use or operation of a motor vehicle operated by a
school employee within the scope of employment (found at §
101.051 of the Civil Practices and Remedies Code)
 Generally school districts can be held liable for negligence
cases involving proprietary functions, but not governmental
functions. However, almost all functions of schools are deemed
governmental functions.

6.  Barr v. Bernhard (1978) – did not involve motor vehicle therefore district is not liable
 Garza v. Edinburg C.I.S.D (1979) – football is a governmental function therefore district is not
liable
 Dunson v. Midland County I.S.D ( 1981) – furnishing swings on a playground is a governmental
function therefore district is not liable
 Hopkins v. Spring I.S.D (1987) – injury not caused by use of motor vehicle therefore district is
not liable
 Heyer v. North East I.S.D. (1987) – vehicle not owned or operated by district employee therefore
district is not liable
 Goston v. Hutchison (1993) – negligent supervision not negligent operation of motor vehicle
therefore school district is not liable
 Hitchcock v. Garvin and Plano I.S.D. (1987) – driver did not activate warning signals of school
bus resulting in accident therefore plaintiffs granted the right to a trial
 Foster v. Denton I.S.D. (2002) – teacher sued district over mold infestation in building which
courts deemed to be tort allegations not involving a motor vehicle therefore district is not liable

7.  $100,000 per person and $300,000 per occurrence for losses
involving bodily injury
 Property damages are allowed a maximum of $100,000
 Limits are listed at Civil Practices and Remedies Code §
101.023
 School bus drivers and drivers contracted for transportation of
students by the district are not held to a high level of care (that
of other transportation services for hire) but an ordinary level of
care that is required of the general public

9.  TEC §21.0511 – a professional employee of a
school district is not “personally liable for any act
that is incident to or within the scope of the duties
of the employee’s position of employment and that
involves the exercise of judgment or discretion on
the part of the employee”
 The only exception is in the use of excessive force
in disciplining students or being negligent in
disciplining students resulting in injury.

10.  All “professional employees” includes:
- superintendents - teachers - nurses
- substitute teachers - principals - counselors
- supervisors - social workers - librarians
- student teachers - school board members - teacher’s aides
- DPS certified bus drivers
 Also included under TEC §21.053 are “direct service
volunteers” except for intentional misconduct or gross
negligence.
 All employees and volunteers working for a regional
Education Service Center.

11.  Cafeteria and Maintenance workers because
they are not “professional employees.”
 Professional Employees NOT acting in the
scope of their duties, NOT exercising judgment
or discretion, and those using excessive force
in disciplining students to cause bodily injury.

12.  Schumate v. Thompson (1979) – Student was injured in a playground incident while under the
supervision of a teacher. Teacher was not liable.
 Wagner b. Alvarado I.S.D. (1980) – Student injured in a physics lab due to spilling acid. Teacher
and district not liable.
 Stout v. Grand Prairie I.S.D. (1988) – Attacked constitutionality of qualified
immunity stating that it provided no means for injured parties to seek recourse
and provided no public benefit. Courts rejected noting “if competent people are
discouraged from entering the teaching profession because of potential tort
liability, the public education system will be adversely affected.”
 Fowler v. Szostek (1995) – Student facing expulsion for the possible sale of drugs was sent
home and subsequently committed suicide. Administrators not held liable.
 Downing v. Brown (1996) – Student alleged that she was injured in a classroom due to
teacher’s negligence in enforcing classroom discipline. Teacher not liable.
 O’Haver v. Blair (1981) – Teacher struck student that was trying to use football facilities on a
weekend. Trial granted to plaintiff due to teacher stepping out of scope of employment, and it
was not clear whether or not he was using discretion and disciplining student.

13.  Civil Practices and Remedies Code §108.002
limits damages assessed to a governmental
employee to $100,000 as long as the employee
was acting in the scope of employment and is
covered by insurance or an indemnity
arrangement.
 Insurance and indemnity arrangement is designed
to ensure injured parties will have a “deep pocket”
from which to recover damages.
 The school district and employee can each be
liable, but not both can be sued.

14.  TEC §22.052 provides immunity from injuries resulting
from the administration of medicine when the district
has a policy regarding administration, the parent has
given consent, and the medication is in the original,
properly labeled container.
 TEC §37.016 provides immunity from damages for
reporting, within the scope of duties and exercising
judgment, a student suspected of using, passing, or
selling drugs or alcohol on school property.
 TEC §22.0511 provides immunity involving reporting of
child abuse.

15.  A person must provide ninety days’ written
notice of the intent to file suit against any
professional employee of a school district.
 A plaintiff is liable for attorneys’ fees and court
costs incurred by the professional employee if
the suit is dismissed.
 A court can require repayment of court costs
and attorneys’ fees if the suit is determined
frivolous.

17.  Corporal punishment in schools has been left to
the State’s discretion by the U.S. Supreme Court.
 Corporal punishment is legal in Texas, but some
school districts have banned it or limited its use.
 No due process is necessary prior to the
imposition of corporal punishment nor is it to be
considered cruel and unusual punishment.
(Ingraham v. Wright, 1977)

18. Remember that the employee cannot be held liable
except in circumstances involving excessive force or
negligence in disciplining a student.
“The best way to avoid falling into the “excessive force” or
“negligence” categories of TEC §22.0511 is to follow school
policy scrupulously” (Kemerer, Maniotis, & Walsh, 2007, p.
392)

19.  Published rules stating what will result in the use of
corporal punishment.
 Corporal punishment used only as a last resort.
 Punishment is to occur in front of a witness but away
from other students.
 Student and witness should be informed of the reason
for punishment prior to its imposition.
 Parents should be notified as soon as possible that the
punishment was implemented and why.
 Some schools allow parents to opt out but it is not
legally required that this be done (Baker v. Owen, 1975)

20. Often schools have a “designated hitter”
responsible for the administration of corporal
punishment. This employee should be
particularly careful and aware that “a flagrant
abuse of the educator’s right to use hands-on
discipline may constitute a criminal offense as
an assault as well as a civil wrong (tort)”
(Kemerer, Maniotis, & Walsh, 2007, p. 392)

21.  Penal Code §9.62 recognizes that educators may
use force but not deadly force “when and to the
degree the actor reasonably believes the force is
necessary to further the special purpose or to
maintain discipline in the group.”
 Must be to enforce compliance with a proper command
issued for the purpose of controlling, training, or
educating the child.
 To punish the child for prohibited conduct.
 Must be reasonable and proportionate to the offense.

23.  TEC Section 26.004 requires parents to have
access to “all written records of a school district
concerning the parent’s child” which includes
counseling records and psychological records.
 Circumstance in which records can be withheld:
 Records have to be maintained by licensed professional
counselor (LPC).
 Records have to meet the federal definition of “sole
possession records” under FERPA.
 LPC has to determine that the release of the records
would be harmful to physical, mental, or emotional
health of the student.

24.  Under FERPA, counselors may disclose information
to school personnel with “a legitimate educational
interest” in the student but school personnel
cannot be held liable for violations of FERPA.
 This includes release to governmental agencies when it
is required or authorized by law.
 Can be sued for not disclosing information in situations
that imminent danger is present to third parties but the
duty to report is to medical/law enforcement personnel
not the potential victims.

26. “Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory, subjects, or causes to be
subjected, any citizen of the United States or
other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceeding for redress.”

27.  Governmental entities such as school districts
are “persons” and subject to liability under
§1983.
 Can only be held liable when the injury is caused by
an official policy of the entity or by an act of an
official policy maker of the entity.
 Official policy makers have been granted or
delegated final authority to establish policy with
regard to the particular issue.

28.  School districts cannot be held liable for the acts of a
principal, central office personnel, or superintendent
because they are not policy makers for the following
reasons:
 They make decisions that are limited by policies not of their
making.
 Their decisions are subject to review by the school board.
 School board has retained the authority to measure the
official’s conduct for conformance with board policy.
The School district can only be held liable when the
school board itself violates and individual’s rights.

29.  Suits involving personal injury must establish:
 That a constitutional right is involved.
 That the actions of school officials exceeded mere
negligence.
 Constitution does not hold the government
responsible for failing to provide a safe work
environment therefore the district is not liable for
employee injury.
 Compulsory attendances laws do not create a duty to
protect one student from another.

30.  Although districts cannot be held liable for injury to
one student by another, another theory is
emerging. The Fifth Circuit Court has not made a
firm decision on this theory yet.
 “If the state takes affirmative action to create a
dangerous situation, to make a dangerous situation
worse, or to leave an individual more vulnerable to
existing dangers than he or she other wise would have
been, the state should be held liable for the individual’s
injuries even thought the injury actually was inflicted by
a private actor” (Kemerer, Maniotis, & Walsh, 2007, p.
406)

31.  Negligence alone will not impose liability,
deliberate indifference can lead to liability.
 The following court cases all agreed the district
was negligent, but that did not constitute
liability.
 Gonzalez v. Ysleta I.S.D. (1993)
 Leffall v. Dallas I.S.D. (1994)
 Myers v. Troup I.S.D. (1995)

32.  Liability may be imposed for those “acting under the
color of law.”
 Individuals can claim qualified good faith immunity, but
governmental entities cannot.
 Individuals can only claim if “their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.”
 The courts decide whether the law was clearly established
or not.
 Teachers as well as administrators can claim qualified good
faith immunity, and the courts expects teachers to have a
basic understanding of key concepts of the law.

33.  School districts can be held liable if the student
is able to prove that school officials were
deliberately indifferent to known incidents of
sexual harassment.
 The harassment would have to be severe,
pervasive, and “objectively offensive.”
 School districts can be held liable for
fraudulently acquiring federal funds.

34.  Public educators have no immunity from violations of
criminal law.
 Public educators are shielded from tort suits as long as they
are acting in the scope of their employment and are using
discretion.
 School professionals are vulnerable in situations involving
discipline or the operation of a motor vehicle.
 School districts are immune from tort with the exception of
situations involving the use of a motor vehicle.
 All school personnel should understand confidentiality of
student records.
 All school personnel should be aware of the increasing
federal rights violations.

35.  Walsh, J, Kemerer, F & Maniotis, L. (2005). The
Educator’s Guide to Texas School Law. (6th
ed.)
Austin,Texas, University of Texas Press.