INTRODUCTION

You will make many decisions during your next emergency. Either you will make them according to plan or you will make them ad hoc, and hope for the best.

You will decide, for example, whether to declare an emergency at your school (the government will not always do it for you) and you will decide whether to conduct an evacuation, and when and how. You will decide, at the very least, whether and how to transport students, where to direct the drivers to go, what to do if they cannot get there, and how to notify parents and guardians as to the whereabouts of their children.

As principals, school administrators, board members, teachers, and staff, you have made many decisions, already, for your next emergency. You decided how much to spend on emergency planning, if anything, and how to allocate it. You decided whom to select as emergency manager, if anyone, and you recruited other employees and volunteers, if any, in preparation. You purchased and stored backup equipment, medical supplies, food, and fuel for your facility, or not. You decided whether and how to involve teachers and students, if at all, in emergency preparedness. You decided transportation routes for students and faculty, short-term and long-term medical care, and alternative meals and housing. You decided which parts of your facility are structurally safe for what kind of emergencies. You decided how to upgrade your facility to be more floodproof, weatherproof, wind-resistant, or easy to evacuate. You decided what kinds of emergencies to be ready for, natural or man-made, whether sudden or not-so-sudden.

After the next emergency, you will decide how to be more prepared next time, and so respond better.

After today, you will also decide how to use your legal authority as school administrators, as well as how to minimize your legal liability.

Legal liability, actually, is the least of your concerns. You simply want to do the right thing by your students and, incidentally, your faculty, staff, and visitors.

LEGAL LIABILITY

The law gives both authority and responsibility to schools for students in their charge. The courts have discussed or decided in many cases whether and under what circumstances public or private school executives or administrative officers may be held personally liable in legal actions for the injury or death of a student, or whether and how the agency running the schools may be held liable as well. This is called vicarious liability of a school district, school board, or other public entity for negligent acts or omissions by those at the school.

There are many court cases dealing with legal liability of public and private schools for accidents associated with transportation of students. There is general authority that if a school entity undertakes to provide transportation to students, it owes a duty of care with respect to such transportation and may be liable to students as a result of a breach of such duty. Under the law of negligence, schools have been held liable for negligently supervising students at bus stops and on buses, for selection of locations for bus stops, and vicariously for the negligence of bus drivers while driving the bus and for failure to follow safety procedures when allowing students to depart from the bus.

Here the law of negligence is of most concern. If a public or private official is negligent, the person or his/her employer may be responsible for paying money damages to injured parties.

A related legal field deals with the right of school officials to indemnification by their employers rather than the question of personal liability of the official in the first instance. The analog to indemnification by public employers are cases involving private schools about coverage and defense of negligence claims by insurance companies from whom insurance has been purchased to cover these eventualities.

This is all within the field of "tort liability", that is, legal responsibility imposed to pay damages for those suffering reasonably foreseeable injury caused by mis-stakes.

You are already familiar with avoiding tort liability in the other fields of law like assault, battery, slander, intentional infliction of emotional distress, intentional interference with contractual or business relations, invasion of privacy, and other personal wrongdoing. We won't address here your litigation involving these personal torts, or property torts such as nuisance, public nuisance, trespass, interference with water rights, and other principles governing how we conduct our affairs on real estate. We also aren't dealing with your obligations to comply with public health, public safety, and environmental laws, and the types of enforcement which can result from your violations.

And we will not cover here your alleged violations of civil rights, due process, equal protection, or other statutory or constitutional duties.

NEGLIGENCE LAW

Negligence is defined as a breach of a duty a person may have (depending on the circumstances) to take reasonable care to avoid causing foreseeable harm to another, where that conduct causes that harm.

The lay public regards this as the law of carelessness.

For there to be a legal liability for negligence, a plaintiff in a suit must be able to prove this "duty of care" arising in the situation, breach of the duty, injury, and causation. In a typical negligence lawsuit, therefore, the plaintiff tries to introduce relevant evidence that the defendant owed a duty to the plaintiff, a standard of care existed for the relationship, the standard was violated by the defendant, and the plaintiff suffered injury as the "proximate cause" and as a "foreseeable result" of that violation.

The lay public thinks of this as proving that the carelessness leads to the injury.

The defendant in the typical negligence suit tries to introduce relevant evidence that no such duty was owed, that no such standard of care existed for the situation, that the standard was not violated, and, in any event, no injury resulted or any injury was not foreseeable.

In other words, litigation in court is a forum for an injured plaintiff to try to prove negligence liability, and for the defendant to rebut that proof. A complaint filed in court merely alleges negligence, it does not make it so. That decision is for the judge or jury, after the trial.

The best way for a school administrator to avoid liability negligence, of course, is to prevent it happening. The next best thing to do is to defend such a suit successfully.

GOVERNMENT IMMUNITY

School administrators who are public employees may be able to invoke a legal defense of some kind of governmental immunity.

In addition, school administrators who make their mistakes while conducting emergency management activities, whether readiness or response, may have some particular immunity. So might their school districts.

Liability (and any immunity) is different for federal, state, and local school officials. Generally, claims against the federal government and its employees, for money damages for negligence, are brought under the Federal Tort Claims Act. Under this federal statute, an official can be liable for negligent conduct not involving a discretionary decision.

State officials, in contrast, generally can be liable for negligence only insofar as the state statute gives consent to be sued for negligence, or insofar as state court decisions on governmental immunity relax the protection. Under the typical modern statute, the employee individually is immune from suit, provided he or she cooperates with the employer's defense, but the agency of government is liable for the mistake to the same extent as private individuals.

Local officials, as a general matter, are liable for negligence except insofar as a state statute confers some immunity. State statutes differ in protections for types of local officials, levels of discretion in decisions, provisions for fire, police, and medical personnel, and protections for the activities closely related to emergency management.

In order to assess potential legal liability, naturally, it is also important to know what hat you are wearing (federal, state or local) and what job you are doing (public agency or private company) when you commit your negligence!

It is also important to know how high up on the organizational ladder you are when you commit your mistake. Generally the law gives more flexibility for discretionary decisions, rather than ministerial. In other words, if you fail altogether to do planning for emergencies, write any plan at all, follow obvious written procedures, train people at least minimally, communicate with the right people, and conduct yourself and supervise your people according to established protocol, the plaintiff after an emergency will be alleging that you were careless in making ministerial decisions at the operational level. For these kinds of decisions, even for government officials, there can be liability if negligence can be proved at the trial.

Another way of saying this is that the phone numbers in the memo on your wall had better be current and correct, for a mistake in a ministerial decision is actionable and may result in a finding of negligence.

In contrast to ministerial decisions, discretionary decisions are those involving executive judgment, a range of choices, evaluation of those choices, and application of some training or experience. This can protect government defendants in negligence suits where the mistake is at the policy formulation level. For these kinds of decisions, especially for governmental officials, there can be immunity for decisions made and actions taken, in good faith, within the scope of authority of the official.

There is a general rule of thumb describing this concept of limited liability for government officials:

A public officer acting within the general scope of authority is immune from tort liability for acts or omissions in good faith involving the exercise of the judicial, legislative, or discretionary administrative functions of government.

At the lower end of the agency ladder, the courts have ruled for liability, thus:

It is a general rule that a municipal officer is personally liable to private persons for injuries imposed by his negligence or misfeasance, when the duty imposed upon him is ministerial and not judicial or discretionary.

The risk of mistakes and claimed liability for emergency management cannot be eliminated. At the same time it is important that administrators not freeze in emergencies out of fear of liability. Knowing the types of liability, how liability is determined, and how liability can be minimized, the well-prepared administrator may use emergency authority to the maximum. The public and the parents of your students expect and deserve active, competent administrators who are not afraid to do what is needed.

25 PRACTICAL TIPS

Fortunately, there are practical approaches to maximize authority and minimize liability. They happen to be the same as the common sense measures to handle emergencies.

1. Recognize the roles of schools in all four phases of emergency planning: mitigation, preparedness, response and recovery. Pay attention to effective planning at every stage.
2. "Mitigation" at schools means the on-going actions which help prevent the occurrence of emergencies. These are both long-term and short-term activities. Pay attention to building codes, electrical codes, storm and earthquake-proof construction, handicapped access, emergency lighting, backup power generation, backup communications, as well as stormwater drainage and flood protection.
3. "Preparedness" helps schools respond effectively and responsibly. Planning and training are the keys to effective emergency response. Train all staff regardless whether they are directly overseeing students, such as custodians, secretaries, and nurses. Involve students in emergency planning, too, so they can respond adequately. The level of planning and exercises for students will vary, of course, depending on age and maturity. Try to use age-appropriate activities to engage them.
4. "Response" at schools refers to the actions during disasters. The aim of response is to protect life as the top priority, and then to protect property.
5. "Recovery" is the long-term and short-term activity at schools afterward. Examples of short-term recovery are restoring vital services, power, heat, security, sewerage, and water supplies. Long-term activities would be done so that schools are functioning at normal level, such as reconstructing damaged areas, providing counseling, and reassessing emergency plans and procedures.
6. Recognize the uniqueness of schools in emergency situations. Schools need to have cohesive and understandable plans for emergencies because of the large number of students under care. These students are generally young, away from home, and without transportation. Make sure your emergency plan takes these important factors into account.
7. Appreciate that schools typically are involved in emergencies at least three ways (not just on premises):
   1. Emergencies on site (at schools) or on school trips.
   2. Emergencies at commercial or government facilities nearby.
   3. Transportation accidents on nearby highways, rivers or railroads, or air crashes.
8. Recognize that, as a result of manmade or natural disasters, schools would most likely evacuate their students, but that is not the end of it. Schools also may be designated as reception centers, command posts, shelters, medical facilities, supply distribution points, or counseling centers.
9. Understand that disasters are more than just catastrophic manmade or natural events. There are also lesser, serious emergencies to prepare for: such things as terrorism, kidnapping, building invasions, disturbed students, parental disruption, and hostage situations. They can occur at school, on the school bus, on the school grounds, or even at a nearby business, restaurant, post office, or other public place.
10. Principals and administrators must assume leadership roles, and the governing board should create and support emergency management policy. It is important not to delegate this to just one nurse or teacher or custodian, no matter how qualified. In other words, emergency preparedness has to be a primary purpose of schools.
11. Involve teachers in all aspects of emergency preparedness (including exercises) and in all stages of emergency response. Utilize them in counseling during recovery because they are in positions to watch for long-term effects of trauma. Counsel teachers early so they themselves can recover quicker so as to be better able to counsel students when school reopens.
12. Utilize students in emergency planning. This is a useful civic activity (helpful at home, too), and will assure better emergency response when it's time. Involve the entire student population.
13. Utilize the private sector. Coordinate efforts with surrounding businesses and industries (and private institutions) to help facilitate your plans. Assess the availability of volunteer organizations for food and shelter, and for helping your students. Coordinate with the local hospital in case of fire, explosion, or food poisoning at school leading to large numbers of injuries.
14. Select and train professionals to counsel students, teachers, and staff. You can make emergencies worse if you do not counsel victims of trauma. One source of legal liability for schools will be failure to aid in the recovery of student victims of shootings, kidnappings, hostage incidents, bus accidents, fires, and floods, especially those resulting in deaths.
15. Identify potential health risks from disasters. In case of flood or contaminated water supply, refer students to appropriate healthcare personnel for treatment. Also identify students with particular health problems (prone to seizure, needing medication, or handicapped) so you can provide this or refer them to treatment without undue delay. Emergencies can occur on the school bus, so make sure bus drivers are trained and know when and how to take children to the hospital.
16. In case of evacuation try to establish alternate shelters for students unable to go home, and have notification systems in place so that parents/guardians know the whereabouts.
17. Identify at risk children with weak arrangements to get home, to get shelter, or to get support in trauma. Reach out to them and make substitute arrangements early. These students are your weak links in your emergency planning "chain". Enlist social workers, mental health professionals, teachers, school staff, nurses, parents, and bus drivers.
18. Have a detailed plan for emergencies taking place away from school, as on school field trips or sports events. Make sure that adequate supervisory staff accompany the students. Then do planning for the largest events at your school. Plan for the maximum attendance at school events, including visiting teams and spectators.
19. Gather and disseminate accurate information to emergency management agencies, and to the public, parents, teachers, students, and staff so they can plan and act accordingly.
20. During "recovery", resuming education, even under the most difficult circumstances, may be one of the most important functions of schools. You might be resuming school sessions for public or private students who are not your own, from neighboring institutions, districts, or communities.
21. For "mitigation" of the next disaster, reduce your own chemical hazards such as chlorine, propane, cleaning materials, and laboratory chemicals; know what the EPA Form Rs and MHDSs on file say about hazards in nearby companies and government facilities; and identify chemicals transported nearby by rail, truck, boat, or overhead by air.
22. Disaster-proof your facilities to anticipate types of emergencies you might encounter. This means to identify possible risk factors. For example, are you in a flood plain or tornado path? Unsheltered against wind in nor′easters and hurricanes? Prone to coastal storm flowage? Vulnerable to highway or railroad accidents or spills? In the flight path of military or domestic airplanes? Chlorine for the pool should be stored properly away from everything else; likewise, sewage treatment chemicals. The fuel delivery location should be away from playgrounds or entrances. Check the security systems and fire and carbon monoxide detectors. Make sure the lighting system is properly insulated against flooding. Does the school have an alternative power supply for food, water, medicine, laboratory refrigeration, and lighting? Replace inappropriate plastics throughout, upgrade electrical systems, and improve fire escapes and exits. Provide extra handicap exits and entrances. Install new floor level exit signs.
23. Use trained decision makers for emergency decisions. Rely on people with practical experience as well as training. Match abilities to the level of decisions required. Resist the temptation to guess and experiment. Make informed decisions with objective assessment of risks and benefits. In cases of doubt, apply the correct policy. Take the time you have to make decisions, even if the time is tight, take every bit of it; make no snap judgments except in those situations demanding them. Make decisions crisp and clear.
24. During emergencies, build a record, keep a log. Make sure the paperwork documenting your careful decisions is preserved. This will track your actions so that vague reconstruction later will be unnecessary and so that your experiences can be useful precedents for administrators later.
25. Inform yourself on legal matters. Read the statutes and regulations governing your authority in emergency management. Attend useful seminars and courses on a regular basis. Consult attorneys and other professionals on problem areas, in advance of the next emergency. Inquire whether you have legal immunity, at least for your governmental decisions and actions taken in good faith within the scope of your official responsibilities and expertise.

It naturally follows from all of this that schools should insist to be included in federal, state, county, and local emergency planning, in written plans, and in emergency exercises. Schools should expect to be invited to write and review plans, to have representation on planning committees, and to be identified in plans as potential sources of emergencies, or as emergency management centers. Schools must want to, need to, and ask to be included in emergency planning.

Do not let unreasonable fear of legal liability paralyze you and your staff. The law creates constraints in order to protect the public and your students from negligence and many other kinds of wrongdoing, not to prevent your doing what needs to be done to respond to emergencies and protect your charges. Use your available legal authority to the maximum. The public, your students, and their parents expect no less. Use your powers comprehensively and creatively.

You may have heard that there are three types of school administrators.

Those who "make things happen",
those who merely "watch things happen", and
those who always wonder afterward, "what the hell happened?"

WHICH ARE YOU?

*Mr. McGregor is founding partner of the Boston environmental law firm, McGregor & Legere, P.C. The lawyers and environmental planners in the firm handle all aspects of federal, state and local environmental law and real estate throughout New England, including zoning and subdivision control, wetlands and floodplain regulation, easements and conservation restrictions, hazardous waste and Superfund liability, and eminent domain as well as "regulatory" takings. Mr. McGregor is the author of the book on "Environmental Law and Enforcement" published by Lewis Publishing, Inc./CRC Press (1994).

The author is very grateful to his law clerk Amber Hassan for a survey of court cases nationally arising out of school liability for students and emergency management materials available to schools.