Injuries in School/College Laboratories in USA

Copyright 1999-2000 by Ronald B. Standler


Table of Contents

Introduction
Negligence
        OSHA rules
        other sources of standards for duty of care
        sloppy safety
        teacher's/professor's duty to supervise
              cases with pupils
              cases with undergraduate students
              cases with graduate students
        unauthorized experiments by pupils
        pupils may not be contributorily negligent
Hazards Inherent in Science ?
Immunity ?
Duty to render first-aid
Workers' compensation for graduate student
Injury of teacher or professor
Conclusion

Introduction

The injury of a pupil in a school laboratory, or the injury of a student in a college laboratory, may be a tort for which the teacher, professor, school, or college is liable.

There are four elements to a tort, all of which must be present before the court can order a remedy:
  1. Duty. The defendant must owe a legal duty to the victim. A duty is a legally enforceable obligation to conform to a particular standard of conduct. In personal injury cases, the duty is set by what a "reasonable man of ordinary prudence" would have done.

  2. Breach of the duty. The defendant failed to conform to the legal duty. The breach can be either an act or a failure to act.

  3. Causation. The breach was the cause of an injury to the victim. The causation does not need to be direct: defendant's act (or failure to act) could begin a continuous sequence of events that ended in plaintiff's injury, a so-called "proximate cause".

  4. Injury. There must be an injury. In most cases, there must be a physical or financial injury to the victim.

Most personal injury torts involve either automobile accidents, dog bites, slip and falls, defective products, or medical malpractice. While the basic principles of tort law apply when a pupil or student is injured in a science laboratory at a school or college, this essay discusses some additional issues beyond what is in a typical personal injury case.

In 1997, when I was in law school, I did a comprehensive nationwide search of reported court cases on injuries in school and college laboratories. I was surprised to find few reported cases, and no law review articles on this subject of injuries in laboratories. As in other areas of tort law, most of the cases are probably settled before trial, so there is no reported opinion of a court. In November 1999, I began writing this essay to share the general principles of law with teachers, professors, and attorneys.

This essay is intended only to present general information about an interesting topic in law and is not legal advice for your specific problem. See my disclaimer.

In this essay, I use the words pupil and teacher to refer to people in elementary schools and high schools, and the words student and professor to refer to people in colleges and universities. This distinction is important, because pupils – as children – require more supervision than students, who are adults.

I list the cases in chronological order in the citations in this essay, so the reader can easily follow the historical development of a national phenomenon. If I were writing a legal brief, I would use the conventional citation order given in the Bluebook.

Negligence

Issues of negligence include:

OSHA rules

It is common in personal injury cases to look at statutes or governmental regulations to determine the standard of care that the defendant should have used. In the USA, the Occupational Safety and Health Administration (OSHA) sets standards for use of hazardous materials and equipment.

The OSHA statute applies to any "employer" who is engaged in a business affecting commerce, except employees of either the federal or state government, or political subdivision of a state. 29 USC §652(5). Don't let "business affecting commerce" fool you: educational institutions can be a business under the broad powers of the commerce clause of the U.S. Constitution. The OSHA statute applies to nonprofit organizations, including private educational institutions. 29 CFR Ch. 17, §1975.4(b)(4). The University of Pittsburgh, despite being funded by the State of Pennsylvania and despite the fact that 1/3 of the trustees of the University were appointed by state officials, is not a political subdivision of a state, and must obey OSHA regulations. 1980 OSH Dec.(CCH) ¶24240. Public high schools (i.e., operated by the state or a political subdivision of a state) and universities totally controlled by state or federal government are probably exempt from OSHA regulations.

But, even if a school or university is exempt from OSHA regulations, the OSHA regulations could still be cited as evidence of a relevant standard of conduct in a tort case against a school or university. Furthermore, in the case of students majoring in science, engineering, or medicine, nearly all of these students will work in an OSHA-regulated environment after graduation, so it is arguably part of their education to teach them OSHA-approved safety practices.

other sources of standards for duty of care

Journals for teachers/professors in various areas of science or engineering sometimes contain discussions of safety in student laboratories. Such articles on safety could also be used as a basis for the opinion of an expert witness on the proper standard of care for the defendant.

Further, standards imposed by accrediting bodies may be relevant in developing a standard of care for colleges and universities. For example, the Accreditation Board for Engineering and Technology (ABET) accredits undergraduate programs in engineering. ABET specifically reviews and evaluates each department, unlike the general accreditation of an entire college by a regional accrediting organization.

sloppy safety

My experience, both as a full-time physics student for ten years and as a professor of electrical engineering for another ten years, is that universities are remarkably sloppy about safety considerations in their laboratories. This sloppy attitude comes from several sources:

teacher's/professor's duty to supervise

As general rules, one can say:
  1. younger people need more supervision than older people. For example, fourth-grade pupils doing chemistry experiments should be closely supervised. On the other hand, a laboratory for engineering majors in their final year of undergraduate college might have little supervision, just a faculty member who is readily available for questions.

  2. more supervision is needed when materials or equipment are more dangerous. For example, a chemistry laboratory (i.e., where there are flammable, explosive, or poisonous materials) needs more supervision than an electronics laboratory, where the highest available voltage is only 30 volts.

One of the best reviews of a teacher's duty to supervise pupils is in a dissenting opinion of an Arizona Supreme Court case.
  The relationship of a public school teacher to his pupil is in some respects in loco parentis. Having the right to control and supervise the pupil, there is a correlative duty to act as a reasonable and prudent parent would in like circumstances. Proehl, Liability of Teachers, 12 Vanderbilt L.Rev. 723, 740 (1959). The rationale of in loco parentis does not however apply in determining liability for a negligent tort against the pupil. In most jurisdictions the parent is not liable for negligent tort against his child, but the public school teacher may be.

  The problem lies in determining what criteria should be used to meet the standard of care necessary to be exercised by the public school teacher. If the probability of harm can be foreseen, the public school teacher should take such measures as are reasonable and prudent to prevent an injury to the student. As the gravity of the possible harm increases due to conditions or circumstances to which the student is subjected, the apparent likelihood of its occurrence need be correspondingly less. No one can deny that few sectors of public and private existence are safe from risks to life and limb; the schoolyard, the classroom, the shop class, the chemistry laboratory certainly have their dangers and their risks. Teachers presumptively endowed with superior skill, judgment, intelligence and foresight, must fulfill the strong duties arising from their public position by exercising care commensurate with the immaturity of their charges and the importance of their trust. [citation omitted]

The characteristics of children are proper matters for consideration in determining what is ordinary care with respect to them, and there may be a duty to take precautions with respect to those of tender years which would not be necessary in the case of adults.
Shannon v. Butler Homes, Inc., 428 P.2d 990, 995 (Ariz. 1967).

  However, age of the injured plaintiff is not the controlling element to tip the balance between liability and non-liability.
Moriss v. Ortiz, 437 P.2d 652, 657-658 (Ariz. 1968)(Lockwood, J., dissenting).

The failure of a teacher to supervise pupils can be negligent conduct by the teacher. Dailey v. Los Angeles School Dist., 470 P.2d 360, 364-365 (Calif. 1970). More recently, a court held:
The university is not an insurer of the safety of its students nor a policeman of student morality, nonetheless, it has a duty to regulate and supervise foreseeable dangerous activities occurring on its property.
Furek v. Univ. of Delaware, 594 A.2d 506, 522 (Del. 1991) (University administration knew hazing was occurring at a fraternity, therefore university had liability for injury during hazing.)

Consider some reported court opinions that illustrate these principles.

cases with pupils

A 16 year old boy was assigned to make gunpowder in a high school chemistry laboratory. He erroneously substituted potassium chlorate for the potassium nitrate listed in the recipe. Instead of pulverizing the ingredients on separate sheets of paper as listed in the instructions, he poured all three ingredients into an iron mortar and pulverized them simultaneously with a pestle, which produced an explosion. The explosion blew away his left hand, seriously injured his right hand, completely destroyed his right eye (he subsequently wears a glass eye), and seriously injured his left eye, so that he has difficulty reading. The teacher was not only present in the laboratory, but also stood 15 feet behind the plaintiff. The trial court granted defendant's motion for a nonsuit. The appellate court and California Supreme Court, reversed, holding that there was sufficient evidence to find the teacher liable for negligence. Mastrangelo v. West Side Union High School, 29 P.2d 885 (Calif.App. 1934), adopted by, 42 P.2d 634 (Calif. 1935). The California Supreme Court added:
  It may well be doubted whether it is proper in an introductory school course in chemistry to require pupils to make and ignite an explosive. It would appear that the dangers of such an experiment, incorrectly performed by young children, might be anticipated; and that the benefits to be derived from its actual performance by each pupil are not so great as to justify the risk of serious injury to the child. But at the very least, if it is to be performed, it necessarily requires the strictest personal attention and supervision of the instructor.
Mastrangelo v. West Side Union High School, 42 P.2d 634, 638 (Calif. 1935).

A Louisiana case in 1974 involved a group of eighth-grade pupils who were preparing a science fair project. A boy poured alcohol from a jug and a girl lit a match near the mouth of the jug, which exploded, severely burning a 14 year old girl who was standing nearby. The trial court found the teacher was negligent and awarded plaintiff $ 7890, which was affirmed by an appellate court. The appellate court declared:
Pleas of contributory negligence and assumption of the risk by the defendant were overruled, the [trial] court finding that Miss Station [the plaintiff] did not appreciate the danger or take part in the abortive attempt to relight the burner. We affirm the judgment of that court.

    The jurisprudence of this state is firmly established that where one creates, deals in, handles or distributes an inherently dangerous object or substance, that an extraordinary degree of care is required of those responsible.

    This duty is particularly heavy where children are exposed to a dangerous condition which they may not appreciate.

    Here, a dangerous instrument was placed in the hands of children without any special degree of care, supervision, or direction. Alcohol, a highly flammable substance, was left in their control to be used in connection with a faulty alcohol burner which had continually given trouble. That the situation was fraught with danger is proven by the results.
Station v. Travelers Insurance Co., 292 So.2d 289, 291-292 (La.App. 1974)[citations omitted].

In another case, a 14 year old boy poured alcohol from a can into an experimental determination of the boiling point of solutions of either sugar or salt in water. (The court's opinion is not clear about the facts, but the aqueous solution may have been in a beaker above a flame from an alcohol burner.) The addition of alcohol to the aqueous solution was not part of the assigned experiment, but was a spontaneous idea of the victim. The teacher was in an adjoining room at the time of the accident. The trial court granted the school's motion for summary judgment. The Wyoming Supreme Court reversed, holding that the alleged negligence of the teacher was a question of fact that needed to be determined by a jury. The Wyoming Supreme Court's opinion says:
Absent special dangerous circumstances, a school district does not have the duty of providing constant supervision of all movements of all pupils at all times.
Connett v. Fremont County Sch. Dist., 581 P.2d 1097, 1103 (Wyo., 1978).

... we would observe that the school owes the student the duty to supervise his activities. This duty becomes more imperative in the classroom, and risks of danger are foreseeable, and thus the degree of care higher, where young, inexperienced students are handling substances which for them are potentially dangerous.
Id. at 1104.
Note that while the judge used the words pupil and student interchangeably, the judge should have consistently used pupil to describe the plaintiff, who was enrolled in a middle school.

cases with undergraduate students

An 18 year old college freshman was taking the second semester of an introductory chemistry class when she mixed potassium chlorate, ferric oxide, and red phosphorous, then applied heat. The mixture exploded and she was injured. The previous experiment in the instruction manual, which she had read and performed, warned not to mix potassium chlorate and combustible materials. The plaintiff and two other students were working in one group, alone in the laboratory. Their instructor was across the hall, meeting with a student. The jury found that plaintiff's injury was proximately caused by failure of the instructor to supervise the experiment and the appellate court affirmed. Brigham Young University v. Lillywhite, 118 F.2d 836 (10thCir. 1941). The jury's verdict troubles me, as it seems to imply that an instructor must monitor every step of every student's experiment, something that is impossible in most laboratory classes with perhaps 20 students.

A college sophomore in an organic chemistry laboratory took a flask of diethyl ether from a fume hood to her laboratory bench. She put the flask about 75 cm from a lighted bunsen burner. The ether vapor ignited and burned the student. The student sued the university, because neither the directions for that specific laboratory experiment, nor the instructor's comments on that day, contained a warning to keep ether away from flame. The jury awarded student $ 45,000 and the appellate court upheld the award. LaVoie v. State, 458 N.Y.S.2d 277 (1982).

cases with graduate students

In contrast to the above cases involving injury to a pupil or undergraduate student, consider the following cases involving injury of a graduate student.

A student pursuing a Ph.D. degree in biology was burned when he was synthesizing monoacetone glucose in a laboratory at Johns Hopkins University. The student chose, as a matter of his personal convenience, to perform the experiment in his usual laboratory that lacked safety equipment, instead of going to a safer laboratory at the University. The student sued the University. The trial court granted the University's motion for summary judgment, holding, as a matter of law, that the student had assumed the risk of an accident. The appellate court affirmed. Evans v. Johns Hopkins Univ., 167 A.2d 591 (Md.App. 1961).

A student pursuing a Ph.D. degree in physics was injured in an explosion in a laboratory. He sued, alleging that his professor and the university should have warned him about the danger of mixing acetone, ethanol, and nitric acid inside a metal container. The trial court directed a verdict for defendants, which was affirmed on appeal. The appellate court said:
Neither [the college] nor [the professor] was required to warn [the student] of the dangers of mixing these chemicals.
....
Although a university student is an invitee to whom the university owes a duty of reasonable care, college administrators do not stand in loco parentis to adult college students. [The professor] has the right to assume that a physics doctoral student, who has graduated with highest honors in chemistry, would either know the dangers of mixing these chemicals or would preform the research necessary to determine these dangers and take the necessary precautions.
Niles v. Board of Regents, 473 S.E.2d 173, 175 (Ga.App. 1996)

... Niles is deemed, as a matter of law, to have equal knowledge [to the professor] of the dangers of mixing these chemicals.
Id. at 176.

These cases show that it is difficult for graduate students to recover for injuries suffered in a university laboratory, as a result of their mistake, error, or bad judgment.

There is a recent case in Connecticut in which an anonymous plaintiff, Doe, who was in his sixth week of residency at Yale-New Haven Hospital, was ordered to change an arterial line in a terminally ill AIDS patient. Doe alleged that he had never been trained to do this procedure safely, and he was unsupervised when he did it. Doe accidentally stuck himself with the used needle and became infected with HIV. Doe sued Yale. Yale argued unsuccessfully that Doe was alleging educational malpractice, so Yale's motion for summary judgment was denied.
Doe v. Yale University, 1997 WL 766845 (Conn.Super. 1997).
(Nearly all reported cases of laboratory injuries involve explosions or fires in chemistry laboratories. Doe is the only biology or medical case of which I am aware.)

unauthorized experiments by pupils

Looking beyond the narrow scope of instructions in a laboratory class, pupils and students often deviate from assigned laboratory experiments which raises legal issues of assumption of risk, contributory negligence, comparative negligence, or even consent. For example, pupils and students sometimes use chemicals to build explosives, rocket fuel, or incendiary devices.

Several courts have considered pupil's surreptitious deviations from assignments as contributory negligence by pupils, which barred any recovery in tort by the pupil, despite the pupil's young age.
  1. A 15½ year old boy was granted access to the school chemistry laboratory for the specific purpose of assembling apparatus for an experiment to be conducted during chemistry class, later that day. While there, he made an explosive compound according to his own recipe (i.e., not in the school's laboratory manual). The explosion blinded his left eye, mangled his left hand so that it required amputation, and perforated his stomach with glass. The trial court directed a verdict for defendant, owing to the contributory negligence of plaintiff in doing an unauthorized experiment. Moore v. Order Minor Conventuals, 164 F.Supp. 711 (W.D.N.C. 1958), aff'd, 267 F.2d 296 (4thCir. 1959).

    It may seem harsh to hold that a 15 year old boy is totally responsible for his injuries. The judge may have relied on the facts that the boy had been familiar with firearms for nine years, and his fellow students in the laboratory advised him not to mix those chemicals.

  2. A 13 year old boy was assigned to build a record player in the school laboratory. Instead, he mixed chemicals for rocket fuel, which exploded and burned him. Although the trial court awarded damages to the boy, the appellate court reversed, by holding that the boy was contributorily negligent. Wilhelm v. Board of Education, 227 N.Y.S.2d 791, aff'd without opinion, 189 N.E.2d 503 (N.Y. 1963).

  3. A 15 year old boy stole crystalline potassium chlorate from a high school chemistry storage room. The chemical was used to make propellant for a cannon, which exploded and "severely injured" the hands of the 15 year old plaintiff. The trial court granted defendant's motion for nonsuit at the conclusion of plaintiff's case. The appellate court affirmed, holding that plaintiff had been contributorily negligent as a matter of law. Hutchison v. Toews, 476 P.2d 811 (Or.App. 1970).

  4. A 17 year old high school senior, and student assistant to the chemistry teacher, mixed red phosphorus and potassium chlorate in a glass test tube with a metal spatula. He mixed "somewhere between 65 and 100 times the volume prescribed in the manual .... it exploded, causing plaintiff serious injury." A jury returned a verdict in favor of the teacher and school. The reported opinion of the appellate court is concerned with a motion for a new trial, which it denied. Shifton v. North Clackamas Sch. Dist., 523 P.2d 1296, 1298 (Or.App. 1974).

  5. A teenaged boy stole sodium chlorate from a school laboratory, by secreting it in his pants pocket. That night, at home, the chemical ignited and burned his leg. Although the trial court denied the school's motion for summary judgment, the appellate court reversed, by holding that the intentional theft was a superseding force that absolved the school from liability. Brazell v. Board of Education, 557 N.Y.S.2d 645 (1990).

pupils may not be contributorily negligent

I would caution against teachers and professors relying on cases that hold young pupils are contributorily negligent. Attorney for the plaintiff could easily argue that teachers should have foreseen such misuse of laboratory equipment by pupils, who were too young to understand fully the magnitude of the danger involved. Anyone who works in education knows that pupils and students – even those who are "old enough to know better" – sometimes do stupid or immature things, because of their lack of experience and because of their lack of perception of the magnitude of the danger. See, e.g., Kush v. City of Buffalo, 449 N.E.2d 725, 729 (N.Y. 1983) (Not locking chemical storeroom at high school was negligent, when storeroom contained "dangerous chemicals", such as magnesium powder and potassium nitrate.).

The dean of the Marquette University School of Law and a former administrator in the Omaha, Nebraska public schools commented:
The problem is that the court may often conclude that although pupils recognize that a warning of danger has been given, they do not fully comprehend the extent of the danger. The court is likely to see in the failure to properly supervise the creating of an improper atmosphere of temptation to experiment.
Reynolds C. Seitz, "Legal Responsibility Under Tort Law of School Personnel and School Districts as Regards Negligent Conduct Towards Pupils", 15 Hastings Law Journal 495, 504 (1964).

Seitz cites a 1943 opinion in California that says:
Knowledge that danger exists is not knowledge of the amount of danger necessary to charge a person with negligence in assuming the risk caused by such danger.
Ridge v. Boulder Creek Union ..., 140 P.2d 990, 993-994 (Cal.App. 1943).

The two dissenting judges in a famous New York state case noted:
  When a large number of children are gathered together in a single classroom, without any effective control or supervision, it may reasonably be anticipated that certain of them may so act as to inflict an unintentional injury upon themselves or their classmates. Children have a known proclivity to act impulsively without thought of the possibilities of danger. It is precisely this lack of mature judgment which makes supervision so vital.
Ohman v. Board of Education of City of New York, 90 N.E.2d 474, 478 (N.Y. 1949)(Conway, J., dissenting, with whom Chief Judge Loughran concurred.)
In the same dissent, Judge Conway wrote a telling retort to the majority's holding that the teacher's 75 minute absence from the classroom was not the proximate cause of a pupil's injury.
Parents do not send their children to school to be returned to them maimed because of the absence of proper supervision or the abandonment of supervision.
Id. at 476.
While this dissent is not law in New York State, two courts in Maryland have quoted the remark about parents not sending their children to school to be maimed:
Segerman v. Jones, 259 A.2d 794, 801 (Md.App. 1969).
Berg v. Merricks, 318 A.2d 220, 227 (Md.App. 1974).
Also, a trial court judge in New York State agreed with Judge Conway's dissent:
Feuerstein v. Board of Ed. of City of N.Y., 202 N.Y.S.2d 524, 528 (1960), aff'd without opinion, 214 N.Y.S.2d 654 (1961).

From an authoritarian point of view pupils, perhaps students also, should be required to obtain advance permission from a teacher or professor for any significant deviations from the laboratory instructions or for any experimental initiatives that the pupil or student may devise. This authoritarian point of view, in my opinion, is ill-suited for an educational environment. Further, most teachers in elementary school and many teachers in high school lack the detailed knowledge of chemistry that would allow them to predict the consequences of a chemical reaction. Rigidly prohibiting (or even discouraging) any deviations by students would inhibit their creativity and learning. Thus, balancing of competing concerns is more appropriate than rigid rules.

academic abstention

The readiness of judges to hold children contributorily negligent, and thus teachers not liable for their pupils' injuries, may be another expression of academic abstention, a poorly articulated doctrine in which judges give great deference to:
  1. administrators who make hiring decisions about teachers or professors
  2. administrators who expel students for failure to maintain minimum academic standards
  3. teachers or professors who award a bad grade to their pupil or student
  4. professors who refuse to approve a thesis or dissertation from a graduate student
  5. and administrators who expel pupils or students for disciplinary reasons, provided that the First Amendment or "due process" rights of the student have not been violated.
I discuss academic abstention in a separate essay. Judges are much more willing to find for plaintiffs in cases involving personal injury in schools and colleges than in cases that involve the issues in the above indented list. It appears to me that judges do not apply the doctrine of academic abstention to tort cases involving laboratory injuries to pupils and students.

Hazards Inherent in Science ?

The defendant may claim that use of hazardous materials and equipment is inherent in some laboratory procedures, for example: Obviously, some hazards are inherent in laboratory procedures, but these hazards are not an excuse for injuries. Instead, the existence of these hazards require that teachers/professors use appropriate caution when designing laboratory experiments, and when supervising pupils/students in the laboratory room. For example, a teacher/professor might be able to modify an experiment so that it is less hazardous, without impairing the educational experience for pupils/students.

One may wonder if a pupil/student who is taking a required introductory biology or chemistry class in order to graduate from high school or college should be required to risk life and limb in a laboratory. It is one thing for professional scientists to take such risks with their own lives, it is another thing for teachers/professors to require that pupils/students take such risks, especially when the introductory science class is on the periphery of the pupil's/student's knowledge. (On the other hand, society seems to have no problem with requiring pupils and students to participate in athletic activities, which carries a greater risk of physical injury, but absolutely no intellectual benefit.)

The situation is somewhat different with a student who concentrates in some area of science or engineering, or with a student in medical school, who – as part of their education – must learn how to work safely with hazardous materials.

An injury to a pupil or student does not automatically indicate that the defendant is legally responsible for the injury. Before a plaintiff can recover damages, the plaintiff must demonstrate to the court that the defendant was negligent. However, the level of proof is only preponderance of evidence, i.e., at least 51% probability.

I was a full-time physics student in universities for ten years (1967-77) and a professor of electrical engineering for another ten years. I worked with 120 V ac electrical circuits since I was a high school student in 1965 who was doing theater lighting. I did high-voltage laboratory experiments during 1971-90, working at voltages up to 40 kV. In all of these years of work, I have only been shocked twice: once in high school and once during my first year of graduate school. It is possible to work safely with hazardous materials.

Immunity ?

sovereign immunity

The conventional wisdom is that the ancient doctrine of sovereign immunity, which holds that people can not sue the federal or state government, was imported from England (i.e., "The King can do no wrong."). Scholarly reviews show that courts in the USA during the 1800s gave sovereign immunity a much greater force than it held in England. Further, the Revolutionary War (1775-1783) was fought to escape from the divine right of kings and to assert a government in which the people say what their rights are, although courts in the USA seem to have forgotten this history. See, e.g., Molitor v. Kaneland Community Unit, 163 N.E.2d 89 (Ill. 1959); Muskopf v. Corning Hosp. Dist., 359 P.2d 457 (Calif. 1961); Mayle v. Penn. Dept. Highways, 388 A.2d 709 (Pa. 1978); A good general description of this doctrine is in Prosser & Keeton, Torts, § 131 (1984). The modern trend is to abolish sovereign immunity.

The Illinois Supreme Court in 1959, The California Supreme Court in 1961, and the Pennsylvania Supreme Court in 1978 all abolished the doctrine of sovereign immunity. The legislatures of each state reacted in terror at the possible obligation of the state to pay large money damages as a result of negligence by state employees: the legislatures quickly enacted statutory immunity for those states, thus overruling these Courts' pronouncements.

While the opinion of the Pennsylvania Supreme Court is now only of historical interest, it is remarkable for the harsh words directed at sovereign immunity. Mayle v. Penn. Dept. Highways, 388 A.2d 709 (Pa. 1978).

modern sovereign immunity

The federal government in the USA and most states have a statute that permits tort claims against the government, under certain conditions. The federal statute, which was first enacted in 1940, is codified at 28 USC § 2671 et seq. In Massachusetts, the relevant statute is in chapter 258, which was first enacted in 1978. The following principles are noteworthy:
  1. Local governments, which operate public schools, are generally not sovereigns. If a judgment against a school district would be paid from state funds, then the school district may qualify for sovereign immunity. Otherwise, school districts in some states may qualify for governmental immunity, which is similar to sovereign immunity. Ayala v. Philadelphia Board Edu., 305 A.2d 877 (Pa. 1973) (abolishing governmental immunity in Pennsylvania, which was then enacted by the legislature).

  2. Governments can be sued under a Tort Claims Act for injury caused by negligence or intent, but not for exercise of discretionary power.
    28 USC § 2680.
    In Massachusetts, the relevant statute is in chapter 258, § 10.

  3. A potential plaintiff under some state Tort Claims Acts must give notice to the state within a time much shorter than the statute of limitations for torts. For example, see N.J.Stat. 59:8-8 (90 day limit); N.Y. Education Law § 3813(1)(three month limit); Mass.Stat. ch. 258 §4 (must present claim to public employer within two years of injury). These examples were correct at the end of 1998, but may change in the future.

  4. Students at military academies operated by the U.S. Government probably can not sue for injuries, under the holding in Feres v. U.S., 340 U.S. 135 (1950).

The subject of sovereign immunity is a complicated area of law, which not only varies among the states, but is also changing with time as states generally follow the modern trend to abolish this immunity. Therefore, it is important that you consult an attorney who is licensed to practice in your state, to learn the current law for your state.

charitable immunity

An old principle of law was that nonprofit institutions (e.g., churches, hospitals, private schools and colleges) could not be sued for torts. The reasoning in support of this principle seems to be that:
  1. a public policy argument: rendering of charitable services, including occasional negligence, was better than the alternative of no services and
  2. limited financial resources should be spent on rendering more charitable services, not on compensating tort victims. This reason is sometimes expressed by observing that the charitable institution held money from donors in trust. It would be a violation of that trust to divert money to compensate tort victims, a purpose not contemplated by donors to the charity. (The courts' reasoning is circular in that it assumes that payment of tort claims is not a proper purpose, then uses the trust theory to validate that assumption.)

Whatever the value of the doctrine of charitable immunity, it is now thoroughly obsolete, and it offers no protection to private schools/colleges or other charitable organizations. See Bing v. Thunig, 143 N.E.2d 3 (N.Y. 1957); President and Directors of Georgetown College v. Hughes, 130 F.2d 810 (D.C.Cir. 1942).

high hurdles

In reading reported cases on the topic of this essay, I have come across statutes in a few states that make it so difficult for pupils to sue teachers that the teachers effectively have immunity. As these states with harsh law are far from Massachusetts, where I practice, I have no interest in doing research to see if these harsh statutes are still the law in those states. I simply note the following recent legal barriers to holding teachers responsible for their wrongful conduct.

In Illinois, a state statute gives teachers the status of parent or guardian. A parent or guardian is not liable for injuries to a child, except for wilful and wanton misconduct of the parent/guardian. Therefore, the effect of this Illinois statute is to require plaintiff to show that a teacher behaved in a wilful and wanton way toward a pupil, before the plaintiff can get past a summary judgment motion by the teacher. See Kobylanski v. Chicago Board of Educ., 347 N.E.2d 705 (Ill. 1976); Nielsen v. Community Unit School Dist., 412 N.E.2d 1177, 1178 (Ill.App. 1980).

In Texas, a state statute bars torts against any teacher who acts within the scope of their official duties, except when the teacher uses excessive force when punishing a student. Hopkins v. Spring Ind. Sch. Dist., 736 S.W.2d 617 (Tex. 1987); Barr v. Bernhard, 562 S.W.2d 844 (Tex. 1978); Duross v. Freeman, 831 S.W.2d 354, 356 (Tex.App. 1992)("... it is troubling from a public policy standpoint that our corporate citizens have unfettered access to the courts for redress of perceived tortious grievances, but children, whose well-being has been entrusted to fiduciaries known as parents and teachers do not have access because of Barr and Hopkins."); Wagner v. Alvarado Ind. Sch. Dist., 598 S.W.2d 51 (Tex.App. 1980).

See also Christopher Bello, "Personal Liability of Public School Teacher in Negligence Action...", 34 ALR4th 228 (1984); Reynolds C. Seitz, "Legal Responsibility Under Tort Law of School Personnel and School Districts as Regards Negligent Conduct Towards Pupils", 15 Hastings Law Journal 495 (1964).

First-Aid

The legal duty of the school or college is not confined to supervision by teachers and professors, in an attempt to prevent injury. The school or college also has a legal duty to anticipate that there will be accidents and to provide an adequate response, such as having functional fire extinguishers and first-aid kits.

The general rule in tort law is that bystanders have no duty to rescue an injured person. Restatement (Second) of Torts, § 314 (1965). However, teachers/professors have a "special relationship" with their pupils/students, such that teachers/professors have a legal duty to rescue and to render first aid. See, e.g., Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3dCir. 1993) (Holding college owed lacrosse player duty of care based on "special relationship", since college recruited student to play lacrosse. Student, who was 21 y of age, suffered cardiac arrest during practice and died. College did not begin CPR until 12 minutes after student collapsed, ambulance arrived 22 minutes after he collapsed.); Restatement (Second) of Torts, § 314A comment d (1965), see also illustration 7.

A case in Washington state in 1959 clearly shows the duty of a college. Jay, a third-year chemistry student was working in one laboratory when he heard an explosion in an organic chemistry laboratory across the hall and ran to help. On entering the organic chemistry laboratory, Jay saw two students using a fire extinguisher in an attempt to put out a fire. Jay picked up an extinguisher from the hallway and re-entered the organic chemistry laboratory. As Jay discovered that his extinguisher was empty, the apparatus exploded, puncturing the retina of his eye and causing permanent injury. There were five fire extinguishers in the basement of the chemistry building, none of which had been recently maintained or inspected. There was normally only one fire extinguisher in the organic chemistry laboratory room, and it had been emptied while fighting two previous fires during the same experiment with ethylene ether and other highly flammable gases. The empty extinguisher had been left in the hallway, where Jay found it. When Jay sued the college, the college's attorney argued that Jay had consented to the risk of injury when he volunteered to fight the fire! The jury awarded Jay $ 27303 (a substantial amount in the 1950s) and the appellate court affirmed. Jay v. Walla Walla College, 335 P.2d 458 (Wash. 1959). The appellate court held that the frequency of fires, together with the lack of recently inspected fire extinguishers, made "a prima facie case of negligence in failing to provide adequate fire-fighting equipment." Id. at 460.

In a Louisiana case in 1970, a high school pupil collapsed from heat stroke while practicing for football. Because of the delay of two football coaches, the pupil was not seen by a physician for almost two hours after the pupil collapsed. The appellate court held that the two coaches were negligent in failing to call a physician and also in using "ill-chosen first aid". The appellate court awarded the pupils parents $ 40,000 in a wrongful death action, plus reimbursement of their son's medical and funeral expenses. Mogabgab v. Orleans Parish Sch. Bd., 239 So.2d 456, 460 (La.App. 1970), writ denied, 241 So.2d 253 (La. 1970).

Workers' Compensation for Students

When a graduate student is injured in a laboratory, a college often takes the legal position that the student was an employee (e.g., teaching assistant or research assistant) and therefore only entitled to Workers' Compensation.

Whether an injured person is a student or an employee is an important legal question, because awards in Workers' Compensation cases are typically much less than in a tort case for negligence.

I believe there are good reasons why a graduate research assistant is not an employee of the college. The issue is not as clear for teaching assistants.

If you are an attorney with such a case, I would welcome the opportunity to write a memorandum of law on this topic.

injury of teacher or professor

I found one case in which a professor sued a college for the professor's injury in the college laboratory.

Prof. Jaworowski used a 2 MeV Van de Graff generator in a particle accelerator in the physics laboratory at Wright State University. When the generator was moved to a new location in the Spring of 1985, various safety features were disabled during packing, and were not enabled at the destination. Jaworowski continued to use the generator at its new location, although he knew that not only were the safety features disabled, but also the radiation safety committee at the university had not authorized the use of the generator at its new location. Jaworowski accidentally placed his hand in the particle beam, and received a massive dose of radiation that required a partial amputation of his hand. The trial court found for the defendants, which decision was upheld on appeal. Jaworoswski v. Medical Radiation Consultants, 594 N.E.2d 9 (Ohio App. 1991).

In general, I would expect a court to find that a professor knew, or should have known, of the danger, and therefore the professor was contributorily negligent or the professor willingly assumed the risk. Further, Workers' Compensation statutes probably prohibit an employee (i.e., teacher or professor) from suing his/her employer in tort over injuries received during the course of employment.

A better legal strategy may be for the professor or teacher to bring a products liability suit against the manufacturer of a dangerous chemical or a laboratory instrument, perhaps on a "failure to warn" theory. Products liability is beyond the scope of this essay.

Conclusion

Personal injuries in science laboratories in schools and universities raise a variety of issues beyond the typical personal injury case. These issues span not only tort law, but also education law and the practice of the relevant area of science, engineering, medicine, etc.

In reading the reported cases in this area, I am struck by the inconsistencies among the various state courts in recent years. For example, in LaVoie, a college sophomore who put a can of diethyl ether near a flame – a really stupid act – was allowed to recover, but in Wilhelm, a 13 year old who was injured while working in a laboratory without supervision, was not allowed to recover. Thus it is difficult to form general rules: results depend on state statutes for immunity, sympathy of a jury and judge, etc.

In addition to the few cases discussed above, there are a much larger number of reported cases of pupils/students injured during athletic activities that may raise analogous issues.


this document is at   http://www.rbs2.com/labinj.htm
My most recent search for court cases on this topic was in Nov 1999.
version 8 Jan 2000, minor revision 1 June 2007

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