A 6-year-old walking to school in the Bronx was struck and injured by a school bus this month at an intersection normally manned by a crossing guard. School officials said the regular guard called in sick and the replacement guard showed up over an hour later, after the accident.
This incident occurred on the very day the Safe Routes to School (SRTS) National Partnership hosted a webinar discussing school district liability in similar scenarios. Program manager David Cowan moderated “Liability 201: Safe Routes to School and Liability Concerns,” which featured Ben Winig, senior staff attorney and program director of ChangeLab Solutions, as well as Sara Zimmerman and Maggie Cooper, both of SRTS.
During her introduction, Zimmerman said it is often difficult to discuss Safe Routes programs with school administrators due to liability concerns surrounding walking school buses, bike trains, remote drop-offs and crossing guards. She added that it is important to demystify legal questions in order to help administrators overcome their fear.
“The main way liability comes up is the concern about any accidental injury to children that may occur during an SRTS activity,” said Zimmerman, who has a doctorate degree in law. “Many schools don’t worry that much about these liability issues … (as) they don’t generally have a duty to supervise children on the way to school unless they ride school buses, for instance.”
Once schools take on a new area of responsibility, they may increase their liability — but if the benefits outweigh the risks, it’s probably worth it, she added. In this context, the term liability is best described as negligence.
“You’re only liable if someone failed to act with reasonable care, they were careless and this carelessness resulted in injury,” she said.
Zimmerman emphasized that liability risks tend to be exaggerated, and big judgments are a rare exception. She provided three recommendations for school administrators who are considering adopting any program supported by SRTS.
- Use reasonable care in setting up and running programs.
- Anticipate potential dangers and take reasonable steps to avoid them.
- Communicate about roles and responsibilities.
Adopting Reasonable Precautions
Attorney Ben Winig of the nonpartisan ChangeLab Solutions discussed liability and risk in the context of crossing guard programs. In many communities, volunteer-run programs make the most sense, he said, and people are more likely to volunteer if they know that there’s some special legal protection available to them. Winig then introduced the Federal Volunteer Protection Act, which states that people who volunteer for school districts, for example, typically can’t be held legally responsible for harm caused by something they did or failed to do in the course of their volunteer activities.
“Of course, like many legal doctrines, there are exceptions to this general rule. No protection is available, for example, if someone acts criminally,” he explained, noting that in some states, schools can't be held liable for the negligence of their volunteer crossing guards per state statute. As with the Federal Volunteer Protection Act, there are some exceptions to this rule as well, he added.
STN previously reported that school districts cannot be liable for their volunteers and crossing guards so liability wouldn't be transferred to the district if, say, a crossing guard were negligent, which was not entirely accurate. We regret the error.
Winig shared an example that paralleled the recent pedestrian accident in the Bronx, only this first-grader died after being hit near a school intersection. Though the city had employed more than 60 crossing guards, the guard at this intersection was not present on that day due to being ill, and there was no substitute crossing guard. Usually the principal would take on this duty in an absence, but did not do so in this case.
What did the court say? The school was found to have breached its duty to have a crossing guard present at said intersection, as the school board had voluntarily assumed this duty.
“When you’re structuring a crossing-guard program, you have to anticipate future problems including absences, and have subs in place,” Winig continued. “Make sure crossing guards are on time ... Also, make sure they are trained. Doing these three things will definitely reduce your exposure to legal action and liability.”
Zimmerman reiterated the importance of identifying hazards and adopting reasonable precautions when implementing any SRTS-supported program. With walking school buses — essentially, a group of students walking to school with adult monitors — she said it may be difficult to find a risk-free route, so organizers should come up with ways to deal with potential hazards such as train tracks.
Techniques can be as simple as having the children hold hands while crossing, educating them on safe walking practices and reminding them to stay alert.
“Ask yourselves: What can go wrong and what can we do make it less hazardous?” Zimmerman suggested. “Training the volunteers is an additional way to show you are thinking about what dangers exist. Also, monitor the volunteers, and if you hear they aren’t doing a good job, address it and follow up.”
Parent volunteers are encouraged to communicate clearly about each other’s roles and responsibilities. For example, designate who is in charge of the phone tree and who can serve as backup monitors in case of an absence. This way you are taking reasonable steps to ensure children, especially younger ones, are not left unsupervised.
“You need to make everyone’s roles clear and make sure parents understand when they are responsible and when schools are responsible,” she added.