By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbagcasciacorg. _________________________________________________________________________________________

Dear Legal Mailbag:

The fence around the elementary school where I am principal has been broken for months, and with the tough budget times, I have waited in vain for the district maintenance crew to come fix it. The fence is an eyesore, and one parent even told me he thinks that it is dangerous. That seems a stretch, but it gave me an idea. What do you think about my writing the director of maintenance a scary memorandum about the broken fence and the risk that children will slip through a gap in the fence and get run over by a bus? I figure that such a memorandum will get his attention and that his crew will get over here and fix my fence pronto. Do you think that I should copy the superintendent on the memo?

Signed,
Getting Results

Dear Getting:

I am quite sure that your memorandum will get their attention. But unless you are looking for a new job, it is not the kind of attention that you will want. Writing such a memorandum will likely blow up in your face and expose the district to liability.

School districts are not insurance companies; and they are liable for injuries only when certain conditions are met. Specifically, school districts will be liable for damages if (1) there is a duty of care; (2) a school official breaches that duty by acting unreasonably; (3) that unreasonable action causes an injury; and (4) that injury is foreseeable. For example, if there is broken step at the entrance to the school, it would be unreasonable not to take action to fix the step. Moreover, if a student or teacher slips on the broken step and is injured, one can well say that the broken step “caused” the injury, which was foreseeable.

The problem with the “CYA” memorandum (you know the term?) is that it exaggerates the danger for effect. You admit that it is a stretch to claim that the broken fence poses a danger. But by warning the director of maintenance in such dire terms, you have created a problem. A student who is somehow injured in connection with the fence could claim that the district is liable because school officials were aware of the danger the fence posed, but unreasonably exposed students to danger by choosing not to act. Once a student is injured and makes such a claim, good luck in persuading a jury after the fact that your memorandum was overdone and that the fence was not really that dangerous. Whenever you write memoranda like that, you must remember that your words can come back to haunt you and the district. Happy Halloween.