Every state has established rules regarding when and how they can be sued. When a state adopts rules that essentially prohibit lawsuits against governmental entities, they establish what is called “governmental immunity.” Before you sue a school district, contact an attorney who specializes in personal injury or government law to see if your state’s governmental immunity laws apply to school districts. If the governmental immunity statutes do apply to school districts, you will then want to explore your state’s exceptions. Some states recognize exceptions like criminal activity and gross negligence. If you can establish that an exception applies to your situation, then you should be able to proceed with a negligence claim against the school district for the injuries to your child. You may also be able to pursue criminal charges against the school employee for reckless or intentionally injuries to your child.
Also keep in mind that governmental immunity generally applies to public school districts. If your child attends a private school, even more options may be available to resolve your claim. Options can include a suit for negligence or simply filing a claim on the school’s insurance policy.
“Negligence” means that the school district failed to exercise due care to prevent a foreseeable injury to your child. “Due care” is that degree of care that a school district would reasonably be expected to exercise to prevent a foreseeable harm. If you file a lawsuit against the school district for negligence, you must prove that the school owed a duty of care to your child, that it breached the duty of care and that this breach was the actual and proximate cause of your child's injuries. The courts will look to several factors to determine if you have met your burden of proof.
Two main factors to consider include the cause of the injury or how the injury occurred. Was the injury caused by inadequate supervision of your child by school employees? If teachers were negligent in the supervision of your child, then the school could be liable for the negligence of the teacher’s actions during the course and scope of their employment. If a teacher was doing something outside the course and scope of their employment, the school may be able to claim that it was not liable.
Next, your focus should be on the nature of the injury and whether or not it was foreseeable and therefore something a reasonable school should have prevented. Examples of potential, foreseeable incidents include:
These are only a few potential examples of foreseeable harm that a reasonable school could have taken precautions to prevent. There are numerous other potential causes of your child's injury at a school. The facts of your particular case and your child's injury will determine whether or not the school was negligent by failing to exercise due care.
Once you establish a duty of due care and a breach of that duty of due care on the part of the school, you need to prove causation. “Causation” requires the court to ask, “But for the school not taking precautions, would your child have been injured?” If the answer is no, then you have established the negligence of the school was the actual cause of your child's injuries. You then need to establish that the school was also the proximate cause of your child's injuries. “Proximate cause” asks whether there were there any intervening events that were unforeseeable that contributed to your child's injury? If the answer is yes, the school is not negligent. If the answer is no, the school is negligent. If you can prove all of these elements, you can establish that the school is negligent and, therefore, liable for your child's injuries.
Prior to filing a lawsuit, present your claim to the insurance carrier for the school. Before you sign a settlement agreement prepared by an insurance company, you may want to have an attorney who specializes in personal injury law review the proposal to make sure that you do not accidentally waive any of your child’s rights or remedies. If you are dissatisfied with settlement offers from the insurance carrier, then proceed to file a lawsuit for negligence against the school.
Before filing a lawsuit for negligence against the school, your child should complete medical treatment for his or her injuries. When treatment is completed and your child is released by the doctor, obtain the medical bills and medical reports. Your child's claim should include the medical bills and compensation for pain and suffering. The medical reports will document the nature and extent of your child's injuries and determine the amount of compensation for pain and suffering. Compensation for pain and suffering is an amount beyond the medical bills. Since your child is a minor, you will need to be appointed guardian ad litem to sue on behalf of your child.
If the case is settled with the insurance company for the school, no lawsuit will be filed. If the case is not settled, you must file the lawsuit prior to the expiration of the statute of limitations or you will lose your rights forever in the matter. Contact a person injury attorney in your state to learn what the deadlines are for your child’s situation.