Hands on science safety handbook
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- 2010-2011 Enid Public Schools 500 South Independence Enid, Oklahoma 73701
- About the Authors Dr. Jack A. Gerlovich
- SAFETY IS A GOOD HABIT TO CULTIVATE, BECAUSE IT
- SAFETY MUST BE OBSERVED IN
- National Science Teachers Association (NSTA)
- Application of Principles
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HANDS ON SCIENCE SAFETY HANDBOOK A Practical Guide for ENID SECONDARY SCHOOL TEACHERS 
2010-2011 Enid Public Schools 500 South Independence Enid, Oklahoma 73701 This booklet should be used in conjunction with the Site Safety Diagrams and Chemical Inventory provided to and maintained by all secondary science teachers and the Enid Public Schools - MSDS located at each of the secondary sites. CONTENTS Board of Education Policy 1 THE TOTAL SCIENCE SAFETY SYSTEM: SECONDARY 2 by Dr. Jack Gerlovich Safety and the Law: What's the Connection? 5 The Law Defined 7 Application of Principles 15 Selected Court Cases 18 Occupational Safety and Health Administration (OSHA) 22 Bloodborne Pathogens and OSHA 22 Right-to-Know Legislation 23 Written Safety Program (OSHA) 24 Science Safety Assessment 25 Using the Safety Checklists 25 Science Safety Policies 28 Science Safety Contracts 29 Recommended Safety Procedures 33 Source: "Safety Precautions for Science," Oklahoma State Department of Education General Laboratory Safety 33 Physical Science 37 Life Sciences 39 Animals in the Classroom 39 Mammals 40
Appendix
Accident Form 64 Student Safety Contract 66 Request for Correction of Safety Concern 67 Storing Chemicals 68 Field Trip Assessment 70 The Classroom 71 Laboratory - Equipment 70 Laboratory - General 76 Laboratory - Room 80 Teacher Preparation Room - Equipment 86 Teacher Preparation Room 87 Storeroom - Equipment 88 Storeroom - Room 91 References 96 BOARD OF EDUCATION POLICY The Board of Education recognizes that laboratory activities and hands-on experiences enhance student performance in many areas including observation, measurement reasoning, education. critical thinking, information organization and conceptualization of scientific phenomena. The board expects laboratory activities to be an integral component of the science curriculum at each grade level, K - 12. The board also recognizes that both students and employees may be conducting procedures or utilizing materials in the course of these laboratory activities that may require prudent and appropriate precautions to ensure the safety of all participants. Therefore, this school district shall establish and maintain science laboratories and classrooms which are reasonably safe and healthful for all students and employees. The school district's science laboratory safety standards and safeguards shall be those which are reasonably necessary for the protection of the life, health and safety of our students and employees. The superintendent or designee will develop regulations and/or procedures which govern the purchase, storage and usage of hazardous materials in the science laboratories. The superintendent or designee will develop requirements for the use of protective equipment, safety and emergency procedures, and first aid equipment in district science laboratories and classrooms. Such regulations will establish an ongoing process by which each location in the district will have a program of identifying and managing potentially hazardous situations that may arise in conjunction with conducting science laboratory activities. Teachers are required to minimize the use of hazardous materials to the maximum extent possible. Teachers are further required to order quantities for immediate use during a single school term and minimize the storage inventory of hazardous materials. Teachers shall learn and teach safe procedures for laboratory activities and exercise reasonable judgment and adequate supervision during such activities. References: Priority Academic Student Skills (PASS), Number VII Adopted: 7 August 1995
SCIENCE SAFETY AND THE LAW Dr. Jack A. Gerlovich
Timothy F. Gerard Legal Consultant Kenneth A. Hartman Chemistry Teacher, Programmer Copyright, 1994 Unless the purchaser has a license from JaKel, Inc. to duplicate more than the single copy authorized, making more than one backup copy, loading it onto more than one harddisk, or sending it to multiple workstations on a network is illegal. THE TOTAL SCIENCE SAFETY SYSTEM: SECONDARY Introduction Science is a dual-definition word. It is a noun for a body of knowledge concerning natural phenomena, and a verb depicting the processes for resolving problems and verifying knowledge. It is a discipline which cannot be learned solely through vicarious experience by students in an educational setting: it must be experienced directly. The National Science Teachers Association (NSTA) also recognizes the need for safety by requiring all presenters at any of its conventions to sign a form entitled "NSTA Minimum Safety Guidelines for Presenters and Workshop Leaders." The document includes the following major components: a listing of prohibited activities guidelines for preparing presentations from a safety 3. perspective, limitations on what can be done during presentations. It is the professional, moral, and legal responsibility of the teacher to weigh the educational value of all scientific activities in which their students will participate against their inherent and foreseeable dangers. If these risks cannot be reduced to an acceptable level, the activity should be altered, changed in its method of delivery, or eliminated. Teachers, administrators, and school board members should not be overwhelmed by the issues discussed in this document. They should not become paranoid about their teaching of science activities to the point of avoiding good science due to fear of our legal system. They should, rather, view this document as a resource and a tool for improving science teaching and for facilitating the continuous process of safety assessment and correction. It is, therefore, the purpose of this safety system to provide science educators with the understanding, foresight, and attitude to enable them to meet their responsibilities. This increased safety consciousness should, in turn, make these informed educators more confident, less susceptible to accidents and liability suits, and better equipped to experience the natural wonders of science with their students. About the Authors Dr. Jack A. Gerlovich is an independent school science safety consultant, author and founder of JaKel, Inc. He is a Professor of Science Education at Drake University. He was the State Science Consultant for the Iowa Department of Education for 11 years. Jack has taught science for a total of ten years at the junior high school through college levels. He is a fellow of the American Association for the Advancement of Science, former President of the Council of State Science Supervisors (1985-87), former member of the Board of Directors of the National Science Teachers Association (1985-87), member of the Board of Directors of the National Academy of Sciences, former President of the Iowa Council of Science Supervisors, and fellow and member of the Board of Directors of the Iowa Academy of Science (1985-87). Jack has co-authored five books relative to science safety, conducted safety assessments of nearly 100 school science programs, and served as an expert witness in the legal defense of science teachers. Dr. Gerlovich has also published nearly 50 articles in professional journals and presented extensively throughout the nation in the field of science/education. He is also a commercial airplane pilot. Timothy F. Gerard is Personnel Officer at Southeastern Community College. He received his B.S. degree in philosophy from Iowa State University and his J.D. degree from the University of Iowa. He has practiced law in Iowa, has taught philosophy, religion, and government at Indian Hills Community College in Ottumwa, Iowa, and philosophy at Iowa State University. He has served as legal consultant on several science teacher inservice projects in Iowa and coauthored two science safety books for Flinn Scientific, Inc. Kenneth A. Hartman is a chemistry and computer teacher at Ames Senior High School, Ames, Iowa. He received his B.S. in Chemistry and M.Ed. in Secondary Education degrees from the University of Nebraska - Lincoln. He has taught chemistry and used computers in teaching for 20 years. Ken was a Project SERAPHIM summer fellow in 1985 and 1986 as well as a member of the American Chemical Society Committee on Computers in Chemical Education. He has conducted numerous workshops on chemistry teaching and the use of computers in science teaching. Mr. Hartman is the recipient of the Chemical Manufacturers Association Regional Catalyst Award and the Presidential Award for Excellence in Science Teaching. SAFETY AND THE LAW: WHAT'S THE CONNECTION? This chapter will explore the connection between safety and the law, especially as it relates to teaching science. It should be understood, however, that the principles and the philosophy expressed here are applicable to other areas of teaching, as well as other activities outside of teaching. The whole purpose of emphasizing safety as we do is our belief, which research supports, that in order for science education to be meaningful to students, hands-on participation is essential. If, in a well meaning attempt to reduce their risk of being sued, educators simply eliminate most of the hands-on activities for science students, they will unwittingly be contributing to the crisis of scientific illiteracy. We cannot expect to inspire future leaders in science and science education unless we are prepared to give them a meaningful science experience in their earliest educational exposure to it. Science is an activity, like art, and it requires participation to fully understand. The activity of science can be safely managed in education by observing reasonable safety standards and procedures. In a 1989 National Association of Secondary School Principals (NASSP) survey 91 of 191 responding high school principals said some student activities have been restricted for legal or insurance reasons. Most often mentioned were gym classes, field trips, vocational shops and science classes. Because we live in a complex society, in which the courts and legal activity are frequently in the news, many people live in fear of being sued or entangled somehow in a legal system they do not understand. While many of the conflicts which arise in our society are ultimately resolved in the legal system, we ought not to worry excessively about being sued, and we ought not to let such fears unreasonably dictate our lives. Teachers are not insulated from changes which occur in society at large. Today a teacher must be aware of many peripheral issues besides teaching their subject, such as the risk of being sued in the course of their work. This chapter is intended to alleviate some of the fears which many teachers have in that regard, by explaining basic legal principles and a safety philosophy which may help them avoid a lawsuit. Before launching into specifics, teachers should understand that the risk of being sued in the course of their work may be greatly exaggerated in their minds. The fact that there is so much attention in the news about lawsuits lends to the impression that everyone is suing everyone else. In fact, an article in the U.C.L.A. Law Review (Vol. 31, no.1, October, 1983), entitled "Litigation in America," indicated that we are not experiencing an explosion of litigation. Statistics reveal that the incidence of litigation in America is not out of proportion with the increase in population, technological sophistication, and social interaction. While there is more litigation in sheer numbers of cases, the evidence does not indicate that our society is experiencing some kind of breakdown of community, in which lawsuits become the means of survival. Moreover, litigation itself is not a symptom of disease in society, but simply a civilized means of resolving conflict. The danger in believing that we are experiencing an epidemic of litigation is that people acquire unwarranted fears which cause them to restrict their behavior. Teachers, for example, who forego reasonable classroom activities for fear they might lead to a lawsuit, allow their fears to unreasonably restrict effective teaching and learning. Anxiety over being sued should not dictate the whole character of teaching, such that student participatory activities become unreasonably sterile or are completely eliminated. Lawyers frequently give conservative advice. They warn clients (teachers, principals, superintendents, school board members) about risks. Their job is to be the devil's advocate, and to present the worst case scenario in order that the client may be fully informed about the risks. Unfortunately, too many people react to such advice by assuming that the worst is always going to happen. Instead of balancing the lawyer's advice with many other equally valuable considerations, they make unreasonably restrictive efforts to avoid a lawsuit at all costs - including compromising the quality of the education which they offer to their students. In a loose sense, to live is to be at risk! There is no doubt that terrible things can happen to any of us as part of the normal life process. We cannot protect ourselves from ever being hurt. We must never let the potential for harm prevent us from appreciating the joys of living. We cannot insulate ourselves out of fear to the point that we no longer participate in the exciting process of being human. SAFETY IS A GOOD HABIT TO CULTIVATE, BECAUSE IT ATTEMPTS TO MINIMIZE THE RISK OF HARM. People who are careless generally suffer the consequences of errors in judgment and miscalculations. Inasmuch as we want to enjoy life to its fullest, we have to stay alive and healthy, which safety promotes. But, like any good thing, moderation is important. One can get too much of a good thing. A person who is so obsessed with being safe that they never venture out of their shell, will miss out on the best that life has to offer. Cultivating reasonable safety habits will not unduly interfere with our ability to enjoy life. Industries adopt safety plans which minimize the risk of accidents on the job. Mothers and fathers adopt safety rules for their children which reduce the risk of painful and sometimes fatal accidents. Science teachers, in general, adopt safety standards which minimize the risk of accidents in the classroom and the laboratory. As such, all of these examples are promoting the same end, a safe environment in which to work, live, and learn. Schools promote safety in order that learning can occur while not unnecessarily restricting student creativity. Therefore, SAFETY MUST BE OBSERVED IN SCHOOLS TO REDUCE THE RISK OF ACCIDENTS WHICH DO NOT INTERFERE WITH THE LEARNING PROCESS Although people have anxiety about being sued, the law merely attempts to incorporate the good common sense which ordinary people exercise. It may not seem like it sometimes, especially with some of the more sensational cases appearing in the news, but the vast majority of cases would make perfect sense to the public if they were reported in the news. Unfortunately, the news does not ordinarily report average situations. The connection between safety and the law is founded in reasonableness. THE LAW ONLY REQUIRES THAT A PERSON BE REASONABLE, THAT IS, EXERCISE GOOD COMMON SENSE. SO, TOO, GOOD SAFETY CONSISTS MAINLY IN BEHAVING REASONABLY AND EXERCISING GOOD COMMON SENSE. A teacher does not need to worry about adopting unfamiliar habits in order to conform to what the law expects, to avoid being sued. Rather, a good teacher can avoid being sued by merely being reasonable and promoting a safe learning environment. In the cases cited at the end of this chapter, it should be obvious that the outcome accords with common sense. Teachers do not need to fear being held to a ridiculous standard of perfection as long as they act reasonably. What follows is a review of some legal principles to show what the law reasonably expects. They are not unique to science teaching, or even to teaching per se. Hopefully, it will be seen that they merely embody the duty to act reasonably, which is to say reasonably safely. The law expects reasonable people to acquire and practice safety habits, which are no more than reasonable precautions. The Law Defined The legal principles discussed here are basic and apply to a multitude of situations including teaching. As such, these principles are applicable to teachers in all subject areas and all grade levels. Many of the comments which follow would apply equally to a vocational education shop class as they would to a science laboratory. Similarly, the permissible level of risk could be allowed to increase with the age level and ability level of the students, but the principles remain the same. Thus, for example, common sense dictates that with HANDICAPPED STUDENTS, the permissible risk level should drop in accord with whatever diminished abilities they may have. The teacher can interpret these principles to conform to their particular situation. The legal system consists basically of the state and federal courts, attended by judges, jurors, whiteness, lawyers, and the LITIGANTS (parties to the lawsuit). Of the latter, those bringing a claim to a lawsuit are called PLAINTIFFS, and those against whom a lawsuit is filed are called DEFENDANTS. Plaintiffs usually seek compensation for damages or injuries which they claim the Defendant somehow caused. Most lawsuits originate in a claim against or a demand made upon the Defendants insurance company. Insurance settlements often occur without the necessity of a lawsuit. Even if a lawsuit is once filed, it may still be settled out of court before trial, in which case the Defendant (or their insurance company) agrees to pay compensation in some amount less than the amount which was sought in the lawsuit in exchange for a dismissal of the suit. A LAWSUIT is a conflict resolution process in which disputes are subjected to the rules of law, either in the form of statutes, or in the form of reported case law. Thus, a lawsuit will follow certain rules, either set down by legislatures, or enunciated in prior cases by judges which creates a body of law on particular subjects or situations. This same law serves as guidance for conduct by those who wish to avoid a lawsuit. The JURISDICTION of a lawsuit depends upon the origin of the claim of the plaintiff, and what body of law is being applied. For most purposes, a claim arising out of a classroom injury will be tried in a state TRIAL COURT, applying the law of that state in which the injury occurred. The decision of that state trial court may then be appealed by the unsuccessful or dissatisfied litigant to a higher APPELLATE COURT within that state, which then reviews the decision and the application of law by the lower trial court. The appropriate court is said to have jurisdiction over the case, the parties and the subject matter. The TRIAL COURT in which a lawsuit is heard will always consist of a judge, but may also include a jury if either party requests a jury trial. The jury, consisting of lay people chosen from the community, will hear the evidence presented by both sides, and then decide the facts of the case. In the absence of a jury, the judge would make the decisions of fact. In either case, the judge would apply the appropriate law to the factual decisions of the case, based upon the evidence, as reached by the jury or that judge. The law applied would be either STATUTES applicable to those factual situations, or COMMON LAW (decisions of previous court cases on the point) concerning those factual situations, or a combination of both. Upon appeal to a higher court, the "decision" of the trial court would only be reviewed on the transcript of the trial, and then decided on the legal principles, not the facts of the case, raised by the litigants on appeal. Generally speaking, a lawsuit arising out of an injury, in which the plaintiff seeks compensation for damages from the defendant who allegedly caused the injury, is called a TORT SUIT. A TORT is a wrongful act which can give rise to a CIVIL SUIT for damages. In a civil suit such as a tort, the STANDARD OF PROOF employed by the jury or the judge in deciding the facts, is by a PREPONDERANCE OF THE EVIDENCE, as opposed to the "beyond a reasonable doubt" standard employed in a criminal trial. The BURDEN OF PROOF rests with the plaintiff(s) - they must prove that damage has been done to them by the defendant(s). DISCOVERY is a process governed by the formal rules of evidence in which the parties to a lawsuit seek to learn about each other's case before trial. WRITTEN INTERROGATION and DEPOSITIONS are the most common, and may be required of either party under court order at the other party's request. In a deposition, witnesses under oath are questioned by the attorneys while a court reporter is making a record which can later be transcribed. The transcript may be used later in the trial for impeachment purposes in the place of a witness who becomes unavailable at trial. The law of torts is usually embodied in the reported results of such cases involved in a given jurisdiction, and not in statutes. The applicable legal principles may vary from state to state accordingly. There may be certain STATUTES or ADMINISTRATIVE RULES, however, which specifically define the standard of care or duty in any given jurisdiction, such as the requirement to wear safety goggles in a laboratory. The cases cited by the judge in reaching a decision will have encompassed those statutes or rules, or they will be considered by the judge for the first time in reaching a decision. New statutes or rules can change the common law, and judges can change the common law by new interpretations. Thus, the law is constantly changing and varies from one jurisdiction to another. The types of torts which arise in a teaching situation usually involve physical injury to a person, and hence are known as PERSONAL INJURY CASES. An example of a tort case involving a teacher might be one in which a student suing a teacher and the school district for an injury received from an explosion in a laboratory under the supervision of that teacher. The claim would normally involve an allegation that the teacher was in some way negligent, and that the negligence caused the injury. NEGLIGENCE can be defined as conduct which falls below a standard established by law or profession to protect others from harm, or the failure to exercise due care. It may also be thought of as carelessness. The criteria used to judge negligence typically include four questions. For educators, they are: was the educator involved expected to supervise? was the educator derelict in this duty? did a personal injury accident result? was the failure to exercise reasonable care the direct cause of the injury? In some employment cases a distinction is also made between two additional common law negligence terms. Negligence could result in the failure to do something which a reasonable person would do (NONFEASANCE), or in performing some act which a reasonable person would not do (MISFEASANCE). Teachers must conduct themselves in such a manner as to avoid being found negligent, or risk being sued. The same is true of the general public in other activities, such as driving a car. It should be noted that although both employers and employees have responsibilities under the standard, only employers can be penalized for failure to comply with it. If an employee fails to comply with rules, the employer may be cited for a violation. In laboratory settings there is an obligation to maintain a safe work place for employees. The duty cannot be delegated by the employer to someone else. In other words it is not the duty of the Chemical Hygiene Officer (CHO) to ensure a safe work place. Any breach of duty can only be brought against the employer, not another employee. The result may be different when the questionable activity was a breach of a persona] duty to care for the injured person. In most states, WORKER'S COMPENSATION statutes can replace the common law negligence statutes. In these states, workers compensation operates to eliminate the need for prove negligence, fault, and duty of care. The most important aspect of workers compensation is the "EXCLUSIVITY OF REMEDY" component within which workers are barred from using any other legal route to sue an employer, but workers compensation protection is provided automatically. The only exceptions would be where the conduct or injury was outside the scope of employment or could be characterized as willful, malicious, or grossly negligent. Supervisory personnel would have immunity under the workers compensation law if their negligence was in performance of their duties. CHO's would want to be certain that they are employees of the school when performing their duties, and that those for whom they are setting safety parameters are employees. If an injured party were a student, worker's compensation would not generally apply, common negligence statutes would. It follows that teachers should conduct themselves carefully so as to avoid accidents. THUS, THE GUIDING PRINCIPLE IS TO PROMOTE SAFETY IN ORDER TO PREVENT INJURY. All of the advice of this chapter can be summarized by that common sense principle, which has application to many different situations. In driving a car, for example, it is wise to drive defensively and safely, to avoid any accident, and especially those accidents which might be considered one's fault. Teachers do not need to be supernatural in their efforts to avoid negligence; they simply need to exercise common sense and cultivate effective safety habits. Accordingly, teachers need not restrict their teaching activities unnecessarily, solely out of fear of being sued, as long as they exercise due care. DUE CARE for a teacher can be summarized in three duties: the duty to instruct, the duty to supervise, and the duty properly maintain equipment. These three duties form the basis for avoiding negligence. A failure to perform any one of these duties properly can result in an accident, in which the person injured may ultimately blame and successfully sue the teacher and/or school district. The first duty, the DUTY TO INSTRUCT, lies at the heart of teaching. A student is not expected to understand all the facts which a more mature, experienced teacher comprehends. Thus, a teacher who does not instruct properly could place a student in a dangerous situation where the lack of appropriate information might contribute to an accident. For example, if a student in a chemistry laboratory is performing an experiment without proper instructions, and as a consequence he or she mishandles the substance, then the teacher could be held liable for any injuries to that student resulting from the lack of critical information. This means to the prudent teacher that it is important to "anticipate" any problems which could arise beforehand, and instruct the student properly how to avoid those problems. This principle is applicable to all three of the aforementioned duties, and is called FORESEEABILITY. A teacher must instruct the students so as to avoid those dangers which a reasonable teacher could foresee. This means that the instruction must be accurate, appropriate for the situation, and should anticipate reasonably foreseeable dangers. The STANDARD OF CARE for a teacher in carrying out their duty of instruction is determined for the most part by the profession. Organizations such as the National Science Teachers Association (NSTA) develop monographs on many science instructional topics, about which informed teachers should be cognizant. A teacher must apply what they have learned in their preparation about their subject and about safety. Their instruction ought to conform to the standards acceptable within their profession. A teacher is obligated to stay abreast of their professional colleagues in this respect, so that their instruction will always be contemporary and accurate. For example, a teacher should not rely upon facts about a certain chemical's carcinogenic properties which are no longer considered accurate by experts in the field. The second duty, the DUTY OF SUPERVISION, is a considerable challenge. Teachers must carefully observe students, making certain that they behave appropriately for the dangers involved. Improper supervision is frequently the source of negligence cited in lawsuits involving teachers. The general rule is that the degree of supervision must be commensurate with the potential danger of the activity being supervised for that audience. Laboratory activities, physical education and sports activities, and vocational education shop activities all require a higher degree of supervision by the teacher than do classroom instruction. The age and make-up of the class also dictate the degree of supervision required. Generally speaking, a younger class, or a class composed of predominantly handicapped students require stricter supervision. As with the first duty, the standard of care will be that of the profession. If most teachers in a similar situation would have exercised a higher degree of supervision, then the duty may have been violated. The principle of foreseeability will also apply in that the teacher must supervise according to the reasonably foreseeable level of danger. The third duty, the DUTY TO MAINTAIN equipment, places teachers in the position of ensuring a safe environment for students. If teachers knowingly allow unsafe conditions to exist in the student's environment, they then expose themselves to the risk of being held liable in the event of an accident. Here again, the teacher must maintain the environment and the equipment in a professional, reasonable condition and foresee dangers which might exist in each particular teaching situation. It would be very unfortunate for a teacher to be using a piece of laboratory equipment which was broken, or which was no longer considered safe, if that equipment fault resulted in an accident. The three duties just described do not create insurmountable barriers to teaching. They simply represent common sense responsibilities which a teacher, because of their unique relationship of authority toward their students, must observe. None of these duties are any different than we would expect of a parent toward his or her child. In a sense, a teacher is placed in the position of being a substitute parent to a child while the student is in their class. There is even a Latin phrase for that relationship, which is frequently cited in legal treatises relating to education, IN LOCO PARENTIS, which means the local parent in that situation. While the degree of responsibility differs between a teacher and a parent, society and the law consider that while a child is under the classroom control of the teacher, that the duties are similar (especially for very young children). One cannot enumerate all of the unreasonable acts which might constitute negligence, or a violation of a teacher's duty to exercise due care in instruction, supervision, and maintenance. Nor would such a list be desirable, since teaching must remain a highly skilled profession in which we rely upon the reasonable judgment of the instructor. But, under certain conditions, teachers must strictly adhere to special rules in order to avoid negligence. Some states, for example, have statutes which require safety goggles be worn by all individuals under certain conditions while in the laboratory. If a teacher fails to enforce such a rule while instructing in a lab, and a student is injured, the teacher may be held NEGLIGENT PER SE for violating the rule. This means that negligence will be presumed on the part of the teacher in the lawsuit. RULES PROMULGATED BY STATE DEPARTMENTS OF EDUCATION, must be observed by the teacher to avoid exposure to liability. If a state department has a set of rules regarding purchase, storage, handling, and/or disposal of hazardous chemicals, for example, then ignorance and/or violation of such rules will be admissible as evidence of negligence per se. Therefore, all teachers should familiarize themselves with the statutes and rules of their state concerning teaching in general and in their subject area specifically. The best way to remain contemporary in such vital areas is to attend inservices and seminars, obtain state department of education newsletters, and become active in professional science/education related organizations. Continuing education will keep a teacher cognizant of current standards of care expected of them professionally, including new rules and laws. It still remains the teacher's moral and professional responsibility to implement a safety ethic with their students. To this point, we have reviewed negligence and how violating a duty to exercise due care can give rise to liability in a lawsuit. What must be proven by the plaintiff, in addition to a finding of negligence in order for liability to attach, is that the negligence was the PROXIMATE CAUSE of the injuries to him or her. If an accident does occur in which a teacher is negligent, but, in which there were other intervening causes of the resulting injuries, then liability may be avoided. For example, if a teacher is negligent in being absent from a classroom when a light fixture happens to fall on a student, the teacher could be held liable only if they had knowledge of the dangerous condition of the fixture and had not initiated repairs. The mere fact that the teacher was negligent in being absent from the classroom and not supervising the students did not cause the light fixture to fall. The school may be liable for damages caused by the falling fixture, however, or the manufacturer of the light fixture for product liability. Where there is more than one cause of an accident, the applicable law on negligence in a particular jurisdiction may become very important. Some states have adopted what is called CONTRIBUTORY NEGLIGENCE, in which a plaintiff cannot recover if he or she was negligent in some way contributing to their injury. Other states have adopted COMPARATIVE NEGLIGENCE in which the plaintiff may still recover even if they were also negligent, though their award might be reduced in proportion to the extent to which their negligence was also a cause of their injury. Refer to Table 1. of this chapter for a state by state summary. Another legal principle which is frequently cited in personal injury suits is called ASSUMPTION OF RISK. It refers to the knowing and intentional undertaking of a dangerous activity in which the person assumes responsibility for any potential injuries resulting from the activity. A person who sky dives would be said to assume the risk of injury associated with such hazardous activity and could not normally recover from the pilot if they were to break a leg upon making a landing. Another recent example is in smoking cigarettes as assuming the risk of cancer or lung damage arising out of the habit. Normally, students, especially VERY YOUNG CHILDREN, ARE NOT PRESUMED TO BE COMPETENT TO ASSUME THE RISKS OF INJURY IN SCHOOL-RELATED ACTIVITIES, because of the unique duty of care owed by schools to students generally. Therefore, this defense is rarely applicable to a school-related claim, although it is often raised in cases involving sports injuries. A very rough rule of thumb is that students below age of seven cannot be held responsible for their activities; between the ages of seven and fourteen they may be according to the circumstances of age, mentality, risk, etc.; and over the age of fourteen, students will generally be held accountable for personal actions. But even in the latter case, they can only assume those risks they are fully informed about before hand. Governmental bodies, such as school districts are sometimes protected from being held liable by a doctrine called SOVEREIGN IMMUNITY_ In those jurisdictions which follow this doctrine, tort negligence cannot be charged to the governmental employer, but can to the employee who is negligent. Many states have abandoned this doctrine in favor of allowing tort suits against governmental bodies. Most jurisdictions provide that the governmental agency must defend and indemnify, or compensate, the employee for such suits in any case. This is known as a HOLD OR SAVE HARMLESS PROVISION. However, such provisions do not apply in those cases where the employee is accused of a willful tort, i.e., breaking the law or behaving in a grossly negligent manner. A WILLFUL TORT is one in which the defendant is accused of having been deliberately negligent and is also called an INTENTIONAL TORT. A teacher who assaults a student commits an intentional tort. In such a case, the negligence is deemed to be the sole responsibility of the defendant, not his employer, even if it occurred during normal employment. Another example is the case where a teacher is intoxicated while supervising a student who is injured. In cases of intentional torts, the plaintiff must prove all of the elements of a normal tort, plus the intentional nature of the wrong committed by the defendant. Where successfully prosecuted, an intentional tort could give rise to a PUNITIVE DAMAGE award in addition to any actual damage award. A plaintiff must file a lawsuit within the time limits prescribed for that type of action appropriate to that specific geographic and legal jurisdiction. The laws which prescribe these time limits are called STATUTES OF LIMITATION. A personal injury suit in the state of Iowa, for example, must be filed within two years of the incident which caused the injury. A minor child is given another year following their reaching adulthood, which could result in a lawsuit being filed several years after the incident. In any event, one cannot assume that any legal action will be commenced promptly after an accident or, given the nature of litigation, that it will be concluded promptly. It is important, therefore, to maintain good records of any accident for possible future use. The doctrine of RES IPSO LOQUITUR, a Latin phrase meaning "the thing speaks for itself," can also surface in tort cases. It usually is alleged by the plaintiff, in support of a refutable presumption of negligence, where an injury takes place without explanation in circumstances over which the defendant had control. For example, if an explosion occurred without explanation during an activity under the teacher's direction, an injured student could raise this doctrine implying that there must have been negligence on the part of the teacher either in the management of the experiment or from defective equipment. Similarly, if a patient were inexplicably injured during surgery, the attending medical personnel would probably face this allegation of negligence by the plaintiff patient. In most states, a person who attempts to render aid to an accident victim is protected by some form of GOOD SAMARITAN LAW. The person giving aid cannot generally be held liable under this law for further injuries to the victim as long as the aid was not reckless and was rendered in good faith. This does not apply to paid accident attendants. In a school-related accident, therefore, teachers can administer first-aid as long as it is reasonable, without exposing themselves to liability for further injury. RELEASES, also called WAIVERS, are frequently utilized in school activities to protect the school and staff from being sued by students injured during activities such as field trips. These releases are generally not sufficiently detailed in their disclosure of possible risks to the student to satisfy the courts. They do not tend to be very effective protection, therefore, to the schools and employees. The courts will strictly construe them in favor of the student, especially when the victim was a minor for whom the parent, or guardian, signed the release. Hence, reliance upon releases would be a poor substitute for proper safety precautions. There are a number of other issues in a school setting which could give rise to a lawsuit. For example, a parent could sue the school concerning a particular part of the curriculum which they believe should be included, or excluded, such as has been the case with concerns regarding sex education or creationism in the curriculum. These types of issues tend to be quite different in character than the safety issues discussed here. Moreover, the type of litigation which arises out of an accident in which safety/negligence is the focus, does not usually revolve around Constitutional law as many of these other areas do. Application of Principles Schools are by no means hazard-free. In fact, laboratories, gymnasiums, workshops, and playgrounds may be viewed as inherently dangerous environments for immature students. Teachers should remind themselves of this and periodically review their domain of responsibility for unsafe conditions which need to be corrected. The mere fact that some equipment and substances can produce immediate death is good reason for continually reviewing the conditions, procedures and habits which govern their use. This routine of periodically reviewing the risks and eliminating those which are unacceptable is very common in the insurance business and is called RISK MANAGEMENT, Some school insurance carriers may actually send an employee to the school to assist in evaluation of the risks in the school environment. The risk of a student being injured by fire, explosion, poisoning, electrical shock, infection, or carcinogenic chemical exposure can often be concentrated in a science laboratory. Science teachers may be casual and comfortable in such labs themselves, but that attitude is not shared by students or the public. Students are often nervous and frightened of the lab, making them increasingly prone to accidents. They may also be excessively careless and completely ignorant of the risks. THE TEACHER MUST IMBUE THE STUDENTS WITH THE PROPER DEGREE OF RESPECT FOR THE DANGERS INHERENT IN THE LABORATORY. The teacher will demonstrate a healthy respect for the risks in so doing. The public, from which potential jurors are chosen, may view a science lab as a place of mystery and danger in which the teacher must be ever vigilant. IN PROMOTING SAFETY, TO REDUCE THE RISK OF ACCIDENT AND INJURY, A TEACHER NEED ONLY CULTIVATE THE HABIT OF CAREFULLY CONSIDERING WHAT COULD GO WRONG AND PREPARING FOR SUCH EVENTUALITIES. This does not require clairvoyant powers, only the ability to reason. It simply means exercising precautions appropriate to the conditions. A prudent person does not drive twenty-five miles per hour on interstate highways in good weather merely because an accident could happen; neither does a prudent person drive fifty-five miles per hour when these same roads are treacherous merely because an accident might not happen. Teachers are not expected to have greater powers of reason than the public, only to have specific knowledge which they must take into account when they act reasonably. A teacher must adequately and properly supervise the students under their control. Having accepted responsibility for a group of students, the law regards the teacher as having their safety in hand. A teacher cannot ignore this responsibility without risking liability. Liability follows responsibility, so once having assumed the responsibility a teacher may be held liable for injuries to students when they deviate from that responsibility. Roughly translated, a TEACHER SHOULD ONLY LEAVE THEIR STUDENTS UNATTENDED IF THEY ARE REASONABLY SURE NOTHING COULD HAPPEN TO INJURE A STUDENT IN THEIR ABSENCE. Since a school district assumes that the teacher in charge of a particular class is supervising those students, A TEACHER SHOULD ONLY DELEGATE SUCH RESPONSIBILITY IF THEY HAVE AUTHORITY FROM THEIR PRINCIPAL TO DO SO, AND THEN ONLY TO ANOTHER RESPONSIBLE AND QUALIFIED PERSON. Thus, normally, a teacher should not leave a class unattended, except in an emergency. The more potentially hazardous the environment or the activity about to be experienced, or the younger the students, the more strictly this advice should be observed. A teacher's liability does not stop when they leave a class of students unless they have properly transferred that responsibility invested in them. Supervision also includes control of the unruly impulses of some students. If a teacher cannot control a class of students, they should seek help in reestablishing order before proceeding and certainly before entering into a laboratory situation. A class which is out of control can be likened to an accident waiting to happen. Unreprimanded student MISBEHAVIOR is often interpreted as an invitation to test the limits of discipline. If a student is hurt while a class is out of control, one relevant subject of testimony will be how often the class was allowed to misbehave. In a sense, the teacher cannot afford to send a message to students that misbehavior is permissible and yet expect to avoid liability for an accident caused by such uncontested student misconduct. The beginning of any new class should include specific instructions about acceptable and unacceptable behavior, especially in the laboratory. IT WOULD BE WISE TO INFORM STUDENTS, IN WRITING, CONCERNING ENFORCEMENT OF SAFETY RULES. For example, students in a chemistry lab may be told that anyone not wearing their eye protective goggles will receive a failing grade for that experiment. These rules should be uniformly enforced in order to promote consistency in student interpretation and impression. If the rules were sufficiently important to require in the first place, the worst thing a teacher could do would be to stop enforcing them. It is also prudent to POST THE RULES and provide written copies to any substitute teacher who will supervise the class. As for the teacher's conduct, actions speak louder than words. Teachers should not expect students to follow safety rules that they ignore themselves. Students will generally emulate good safety habits they observe the teacher, ROLE MODEL employing. Do not hurry and do not cut corners concerning safety! With respect to instruction, be thoroughly prepared for what might go wrong. Anticipate Murphy's law and take precautions. Go over information with students before the lab experiment in the classroom, where they can ask questions and think about instructions undistracted by the laboratory environment. WHENEVER POSSIBLE, GIVE WRITTEN AS WELL AS VERBAL INSTRUCTIONS, INCLUDING WHAT NOT TO DO AND WHY. Before undertaking an experiment or a class project, ascertain the risks and decide whether the students in that situation have sufficient maturity and ability to complete it safely and to learn from it. IF THE EXPERIMENT, OR PROJECT, IS PARTICULARLY DANGEROUS, PERHAPS IT SHOULD BE PRESENTED AS A DEMONSTRATION IN WHICH THE STUDENTS MERELY OBSERVE RATHER THAN PARTICIPATES. If a student is absent for the instructions, or is mentally unprepared, consider having them watch rather than participate, or provide them with especially close, individual supervision. Do not allow students to select their own lab partners haphazardly, or you may realize combinations which are either incompetent or serious discipline problems. If you must be absent, consider cancelling the activity, or postponing it rather than leaving it in the hands of an unqualified substitute. Apprise the building principal of such precautions. In order to be adequately informed to fulfill the duty of instruction, a teacher should be continually aware of new developments in their field, especially as they relate to safety. Attending conferences and reading material such as this, are important in maintaining standards of professionalism for teachers. It would be professionally irresponsible and legally inadvisable to assume that nothing new could improve your teaching or the safety in your instructional environment Keep school authorities informed relative to safety corrections which require their approval. Be certain that you MAKE A WRITTEN RECORD of the transmission of such requests to administrators. The first responsibility rests with the teacher to exercise professional judgment concerning matters of safety. School officials should respect that judgment and not compromise on matters of safety in the face of budget restrictions. Review all written material, especially new textbooks, for accuracy. Use only those editions which are up-to-date and accurate. Select materials appropriate for the audience, budget, and environment which best represent your total teaching situation. If in doubt, concerning a technical issue, secure another opinion before transmitting the information to students. Do not assume that students read and understand what they need prior to releasing them in the lab. Anticipate the potential problem before it becomes an accident. REHEARSE EMERGENCIES which are reasonably ''foreseeable" with your students. IF AN ACCIDENT DOES OCCUR, MAKE CERTAIN THAT YOU FOLLOW ANY APPROVED LOCAL EMERGENCY PLANS. Use the most appropriate equipment for the situation. Do not panic! Act promptly and decisively. Do not let students expose themselves, unnecessarily, to further risk of injury. Do not underestimate the seriousness of the accident, or attempt to downplay it. After the pressure and confusion of the event subsides, make a complete record (including witness and other staff accounts) of what occurred in the accident. Go over it with the students so that it becomes a learning experience. Do not assume that nothing will come of the event. Make certain that the school authorities are notified and provide them with a duplicate copy of your records relative to the event. They may want to notify insurance carriers, especially if any injury occurred. The law allows that accidents do happen, sometimes through the fault of no one. You cannot prevent every accident, just as you cannot prevent every lawsuit. But being safety conscious will help minimize your risk of accident and your risk of being sued. A teacher with a good safety record and a good reputation for safety will make a far better impression in court than one whose practices have been marginal. The law only requires that you be aware of the risks and take reasonable precautions. As long as your conduct conforms to the standards of the profession, and you attempt to foresee problems, you have met your legal, moral, and professional responsibilities. More importantly, you have provided your students with a safe, yet stimulating and effective learning environment. Selected Court Cases The following are examples of cases involving science teaching which illustrate a range of conduct. It should be evident that the standards imposed by the courts in these cases do not strain the imagination, and yet exemplify basic good judgment. One of the reasons there is not much new case law is because this area of education law (tort liability) is fairly well defined. That is, the legal principles are well settled. This is especially true in that the tort principles (negligence, etc.) are the same regardless of the activity involved (teaching science, driving a car, coaching a sport, etc.). Also the reported cases are appellate court cases, which only occur when a trial court decision is appealed by one of the litigants. In other words, the number of reported cases does not necessarily reflect the number of lawsuits being filed or trials held, especially in an area of settled law such as torts. Other areas of education law, particularly constitutional cases, are increasing in reported cases because those areas of law are not settled. Examples include teaching controversial issues (sex education, evolution, creationism, etc.), special education requirements and due process in disciplinary matters. In Duross v Freeman, a San Antonio appeals court found that a chemistry teacher not liable for injury to a student allegedly arising from negligence in supervising handling of dangerous chemicals, since professional school employees are not personally liable for acts done in the scope of their employment, and which involved exercise of judgment or discretion, except in circumstances where discplining a student and the employee uses excessive force or negligence results from bodily injury to the student. In a classic case, Mastrangelo v. West Side Union High School, the appeals court reversed the trial court in holding that a high school chemistry teacher could be held liable for injuries sustained by a student when a chemical mixture exploded. In this case the student injured mixed potassium chlorate instead of potassium nitrate with charcoal and sulfur. The court held that both the teacher and the school district were liable for negligence consisting of the failure to adequately inform the student of the danger involved in the gunpowder experiment and the failure to properly instruct and supervise the activity. The plaintiff student alleged that the teacher observed him mixing the chemicals improperly in an iron mortar. Liability was also found against the defendant school district by the trial court in Rh v. San Francisco Unified School District, in which a sixteen year old student mixed potassium chlorate with red phosphorous, both of which he had taken from an open chemistry shelf. On appeal, the case was reversed on the basis of an improper jury instruction concerning the degree of supervision required. Controlled access to dangerous substances ought to be the lesson of this case. The court applied the doctrine of res ipsa loquitur in the case of Damgaard v Oakland High School District in finding liability when an explosion occurred during an experiment being conducted by the teacher. The court stated that the teacher could be liable even though the explosion was unexplained, due primarily to the fact that the experiment involved materials which were inherently dangerous. This established a duty on the part of the teacher to eliminate the activity or, if he or she decided to conduct the experiment, to assure that it was safe. A teacher was found negligent in Jay v. Walla College where a student working with ethyl ether was injured when it exploded. The instructor had been apprised of two previous minor explosions during the earlier stages of the experiment and failed to provide corrective supervision. A teacher and principal were held to have potential liability in Bush v Oscoda Area School, even though the school district was protected by the doctrine of sovereign immunity. In this case, a student was burned when methanol caught fire during a science experiment which was being conducted in a mathematics classroom. The room was not properly equipped with storage, ventilation, fire extinguisher, or fire blanket, and alcohol lamps were being used because gas burners were not available in the room. The methanol was stored in an allegedly damaged and leaking container. The classroom was being used due to a shortage of space in the science rooms. Negligence was cited for the failure to supervise, failure to instruct as to dangers, and failure to provide safe equipment and space. In Pittman v. City of Taylor, an appeals court rejected the sovereign immunity doctrine and ordered a retrial on the question of the school's liability for furnishing dangerous chemicals where a sixteen year old student was injured at home when mixing chemicals furnished by the teacher to construct a rocket. Negligence was found against a school in Simmons v, Beauregard Parish School Board for lack of supervision when a thirteen year old student used a firecracker in a volcano project. The court stated that a school could be found liable for improper supervision in Butler v. Louisiana State Board of Education, in which a student fainted and sustained injuries during the resulting fall while giving blood in a biology lab activity. Finally, two elementary teachers were found liable in Guerrieri v Tyson for injuries to a ten year old student whose finger they held in boiling water allegedly for the treatment of an infection. The teachers were found neither qualified nor authorized to employ such a radical emergency treatment. In a 1987 accident in a Salem, Illinois junior high school, science class, 17 students were injured. The accident occurred during a teacher demonstration of water reactive chemicals. The students were clustered around a bucket of water when the chemicals were tossed in. No one was wearing safety goggles. Two students suffered eye injuries, while 15 others received first and second degree facial burns. In this accident, question were raised concerning negligence regarding inappropriate activity instruction and noncompliance with eye protective legislation. In the foregoing cases, the court found for the plaintiff based upon the unreasonableness of the school's or the teacher's conduct. The principles applied were those discussed earlier in the text, illustrating where the duties to instruct, supervise, and maintain were breached. If these cases illustrated extreme behavior, which was disapproved, the following illustrate the opposite where the behavior of the school or its employee(s) was not found negligent.
Contributory negligence was found in Wilhelm v. Board of Education, barring two students from recovering where ten minutes after beginning work on an authorized science experiment, they began to play with some chemicals which they knew were dangerous. The misbehavior occurred in a different part of the lab, resulting in the injuries. Here again, lack of supervision and access to dangerous chemicals could have resulted in a different decision were it not for contributory negligence, in which the fault of the plaintiff barred recovery. A teacher was not held responsible for an eye injury in Madden v. Clouser, which had resulted when two students fought over a pencil, even though the teacher had left the room briefly. The court held that the teacher's supervision (absence) was not a proximate cause of the injury. An injury to the eye when a student was not wearing safety glasses did not result in liability against the teacher in Demarais v WachuaettikegiaL211 School D'stdct because there was no statute requiring them in the state at that time creating a duty that the teacher could have breached. The court went on to say that even if they were required, the teacher would still not be liable if the student took them off knowing that they were required. Finally, in Frace v. Long Beach City High School, neither the school district not its employees were held liable when a seventeen year old was injured while conducting an experiment at home with stolen chemicals. The chemicals, which were normally kept in a locked storeroom, were stolen by two other students when a janitor, without authorization and against the rules, allowed them access to the room. They, in turn, gave the chemicals to the student who became injured. The janitor was relieved of liability by the intervening acts of the two students in stealing the chemicals and the school by virtue of the injury to the third student being unforeseeable. Relevant case annotations dealing with these issues may be found in 35 ALR 3d 758, dealing with "Tort Liability of Public Schools and Institutions of Higher Learning for Accidents Associated with Chemistry Experiments, Shopwork, and Manual or Vocational Training," 28 AM JUR POF 2d 499, dealing with "Teachers Failure to Enforce Safety Rules," 34 ALR 4th 228, "Personal Liability of Public School Teachers in Negligence Action for Personal Injury or Death of Students," and 35 ALR 4th 272, "Personal Liability of Public School Executive or Administrative Officers in Negligence Action for Personal Injury or Death of Students." OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA) In December, 1970, Congress passed and President Richard Nixon signed into law the Williams-Steiger Occupational Safety and Health Act (OSHAct) of 1970. This act established several new organizations, among was the Occupational Safety and Health Review Commission (OSHRC) appointed by the President to hear and review alleged violations, the National Institute for Occupational Safety and Health (NIOSH) established to conduct research and educational functions, and the Occupational Safety and Health Administration (OSHA) - within the Department of Labor. The fundamental purpose of the OSHAct was to ensure as much as possible safe and healthful working conditions for every working man and woman in the nation. In order to assure compliance with OSHA standards, inspections are made without prior notice by OSHA compliance officers. The following priorities are observed in conducting such inspections: 1. following any accidental death or mishap in which five or more workers are injured; 2. whenever a report is received of an imminent hazard; 3. periodically within businesses engaging in hazardous production. A state that wishes to control safety management control over businesses within its own borders must submit a proposed plan indicating how it intends to assure that the program is as effective as the federal program. For three years the federal government will maintain surveillance over such trial programs. Currently approximately 25 states have such approved programs. The most notable OSHA legislation impacting on schools include Bloodborne Pathogen, Right-to-Know, and Chemical Hygiene Plan. Bloodborne Pathogens and OSHA On December 6, 1991, OSHA issued its final Bloodborne Pathogens Standard. It mandates engineering controls, work practices and personal protective equipment that, in conjunction with employee training, is designed to reduce job-related risk for all employees exposed to blood. Employers must establish a written exposure control plan which identifies workers with occupational exposure to blood and other potentially infectious material and specify means to protect and educate these employees. Other requirements include hepatitis B vaccinations and applicable medical follow-up and counseling following personal exposure. The standard becomes effective May 30, 1992. Under 29 Code of Federal Regulations (CFR), Part 1910.1030, Subpart Z, the Department of Labor, OSHA released the 1992 Bloodborne Pathogens "Standard Summary Applicable to Schools." "The intent of this standard summary is to offer schools an overview of the OSHA standard to eliminate or minimize occupational exposure to Hepatitis B virus (HBV), which causes hepatitis B, a serious liver disease; Human Immunodeficiency Virus (HIV), which causes Acquired Immunodeficiency Syndrome (HIV) and other bloodborne pathogens. Based on a review of the information in the rulemaking record, OSHA has made a determination that employees face a significant health risk as the result of occupational exposure to blood and other potentially infectious materials because they may contain pathogens. OSHA further concludes that this exposure can be minimized or eliminated using a combination of engineering and work practice controls, personal protective clothing and equipment, training, medical surveillance, Hepatitis B vaccination, signs and labels and other provisions. This summary includes scope and application, definitions, exposure control, methods of compliance, Hepatitis B vaccination and post-exposure evaluation and follow-up, communication of hazards to employees, recordkeeping, and effective dates." A more complete description of the components is included in the "Bloodborne Pathogens" section in the Safety Assessments section of Disk 2 of this software. The classroom and the lab must be periodically inspected for unsafe conditions. Notably, safety equipment should be in place and operable. A first-aid kit which is out of stock is of very little help during an accident, or later in a lawsuit. A fire extinguisher which is outdated, inappropriate to the type of fire expected, or uncharged is inexcusable. Check for broken or excessively worn equipment and discard it or have it repaired. Check for mislabeled, unlabeled, or outdated substances. Review the layout of the room for orderliness of its contents with an eye toward safety, traffic flow and ease of exit. KNOWINGLY ALLOWING AN UNSAFE CONDITION TO CONTINUE IS WORSE THAN NEVER DISCOVERING IT IN THE FIRST PLACE. Download 1.13 Mb. Share with your friends:
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