Overview of General Liability, Workers' Compensation, and Employment Law Issues in K-12 Educational Institutions

JurisdictionColorado,United States
CitationVol. 44 No. 10 Pg. 25
Publication year2015
44 Colo.Law. 25
Overview of General Liability, Workers' Compensation, and Employment Law Issues in K-12 Educational Institutions
Vol. 44, No. 10 [Page 25]
The Colorado Lawyer
October, 2015

Special Issue: Education Law

Overview of General Liability, Workers' Compensation, and Employment Law Issues in K-12 Educational Institutions

By Frank Cavanaugh, Jenna Zerylnick.

About the Authors

Frank Cavanaugh is of counsel with the Denver law firm of Lee + Kinder, LLC, where he practices in the areas of workers' compensation, general liability, commercial litigation, and employment law. He is AV rated and has over 25 years of experience in these areas, including representation of K-12 school districts. Jenna Zerylnick is an associate attorney with the Denver law firm Lee + Kinder, LLC, where her practice focuses on workers' compensation defense, insurance defense, general liability, employment defense, and Medicare set-asides. She has a broad civil litigation background, including personal injury, probate, contract disputes, family law, and school law—JZerylnick@leekinder.com.

This article examines tort liability, workers' compensation, and employment law issues that pose unique challenges and create exposure to K-12 school districts. The article also provides examples and practice tips for attorneys practicing in these areas.

Public schools play an important role in our society as education providers and serve a parens patriae[1] function. They also offer a valuable social opportunity for children and are a significant part of most communities as employers. According to the Colorado Department of Education, there are 178 independent K-12 school districts in Colorado. These districts vary in size and, as a whole, are among the largest employers in Colorado, employing a variety of employees in many jobs. K-12 schools are public entities and therefore are subject to various federal, state, and local regulations. K-12 school districts face tort, workers' compensation, and employment liability unique to their role in our state.

This article discusses a great breadth of topics, providing a highlight of key issues that create liability exposure unique to K-12 school districts.

General Tort Liability

K-12 school district liability is tied to the Colorado Governmental Immunity Act (CGIA), requiring review of how the CGIA operates and areas where immunity from tort claims is waived.

K-12 School Districts and Governmental Immunity

K-12 school districts originate under the Colorado Constitution and are regarded as quasi-municipal corporations.2The CGIA limits tort liability in K-12 school districts.[3] K-12 school districts are public entities within the meaning of the CGIA.[4] Charter schools are also protected under the CGIA.[5]

The CGIA provides sovereign immunity from claims that lie in tort except for claims where immunity is expressly waived. Waived immunity is construed narrowly because the legislature eliminated sovereign immunity as a doctrine when the CGIA was enacted; therefore, unless immunity is expressly waived, it exists. The CGIA recognizes that public entities require limited liability. Otherwise, taxpayers would have too great a financial burden in supporting unlimited liability.6

K-12 school districts covered by the CGIA and employees of K-12 school districts enjoy qualified immunity from personal liability for any alleged tort committed in the course and scope of e mployment.[7] "Public employee" is defined broadly under the CGIA and includes individuals not compensated in a traditional sense, as well as elected or appointed officials. K-12 school district boards and authorized volunteers who have acted for the benefit of a public entity, at the request of and subject to the control of the public entity, are also employees.[8] If suit is brought naming a public employee as a defendant, the public employee has the burden of showing that he is immune from suit. If that burden is met, to overcome the immunity defense, the plaintiff must show that the public employee's actions producing injury were willful and wanton.[9]

Exceptions to Sovereign Immunity

The waived exceptions to sovereign immunity relevant to K-12 school districts fall into specific areas including injuries arising from: (1) the operation of a motor vehicle owned or leased by a public entity; (2) a dangerous condition of a public building; (3) a dangerous condition due to snow and ice on property leading to a public building; (4) a dangerous condition of any public facility located at a park or recreation area that is maintained by a public entity; and (5) the operation and maintenance of any public swimming facility by a public entity.[10] There is also a new waiver of immunity for injuries attendant to a violent act at school.

The Colorado General Assembly amended the CGIA in the 2015 legislative session to include a waiver of immunity directed at K-12 school districts. This amendment contained in Senate Bill (SB) 213, known as the Claire Davis School Safety Act, was prompted by the 2013 shooting death of the Arapahoe High School student for whom the bill was named. This new section of the CGIA creates a legal duty of reasonable care by school districts to protect students, faculty, staff, and others from harm that is reasonably foreseeable within school facilities or during school-sponsored activities. The amendment only applies to actions for serious bodily injury or death resulting from violence. The amendment defines "serious bodily injury" at the time of the injury, or at a later time, as involving "substantial risk of serious permanent disfigurement, or substantial risk of protracted loss or impairment of function of any part or organ of the body." The amendment was originally drafted to have an effective date of January 1, 2013, but that was removed, leaving the effective date the date of signature. Any case filed for an occurrence after that date but before July 1, 2017 may go forward with discovery. When this bill was moving through the General Assembly, it was amended so that a plaintiff in a case arising from an occurrence before July 1, 2017 cannot seek damages. This allows districts time to get new procedures in place without facing potential loss.[11]

Previously, the CGIA waived immunity when the public entity purchased insurance coverage for the claim being alleged.[12] The idea was that public funds used to buy coverage should remove any claim of immunity that could be asserted against a member of the public.[13] Notably, being self-insured, rather than having purchased insurance, did not invoke a waiver of immunity.[14] That section of the CGIA has changed. It now only allows for a waiver of immunity by resolution, so long as the resolution is legislative in nature, meaning it requires a majority vote by the governing body.[15] To the extent that a K-12 school district waives immunity by a vote of the school board, that resolution removes governmental immunity.

Caps on Claims

On April 19, 2013, the CGIA was amended to increase the cap on damages from $150, 000 to $350, 000 per person and from $600, 000 to $990, 000 per event. Colorado is one of 33 states to limit damages under waived immunity.16

Examples of Waived K-12 Tort Scenarios

K-12 school district tort immunity involves situational review of areas where immunity is waived. Here are fact-specific examples where waiver of immunity is considered by a court.

Sidewalks/Playgrounds and Fields

School districts maintain large properties, some owned and others leased. Under either situation, school districts are responsible for the condition of property under their control. School district responsibility for these areas has been a source of litigation in several scenarios.

In a recent case, St. Vrain Valley School District RE-1J v. A.R.L., a minor was injured while playing on a zip-line during lunch recess. The playground where the zip-line was located was part of the school grounds provided for public use by the school. The Colorado Supreme Court found that the minor's injury occurring on the playground, as a public facility, was an immunity-waived tort. The zip-line and the collection of playground equipment was a public facility. For application of the recreation area waiver, the zip-line was part of the recreational facilities that included other equipment. The Court recognized that a single piece of equipment standing alone may not qualify as a public facility in a recreational area under this same exception.[17] Multiple pieces of playground e quipment changed the character of the area into a public facility.

The recreation area immunity may apply for an injury occurring on a public facility (1) if the facility shares common features with other items in the recreational area waiver, (2) if legislative history shows that it was intended to qualify as a recreational area, and (3) if it is a component of a larger set of items promoting a broader common purpose.[18] Therefore, in Young v. Brighton School District 273, a case resulting from an injury due to a slip and fall on a cement walkway at an elementary school, the sovereign immunity defense did not apply. The sidewalk was a public facility under this section waiving immunity. The location of the slip and fall and the sidewalk were key facts in the Court's decision. In Young, the sidewalk was adjacent to the school property and easily accessible by the public. After Young, the Colorado Supreme Court announced a three-part test to determine whether a location of an injury is within a recreation area. First, a court is to determine whether the location of the injury was within the putative recreation area. Then it must determine if the primary purpose of the area was for recreation. Finally, the court must consider whether the facility in question is located in the recreation area.[19]

CGIA waivers are not mutually exclusive, so an injury...

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