Cuddy Law: Education Law Quarterly, Vol. XIII No. 32 March, 2007

Although we reported about Upton v. Clovis Munc. Schools in an E-Mail Alert at the time it was issued, this article provides a more detailed review of the implications of this critical case. In Upton, the parents of a 14 year old asthmatic student sued the District after the student collapsed and died following a strenuous PE class. The parents alleged that the school was negligent in failing to immediately call 911 when the student had the asthma attack, as the school had allegedly previously agreed to do. The parents sued under the “negligent operation or maintenance of a school building” exception to the Tort Claims Act.

The Tort Claims Act provides immunity from lawsuits for most tort claims for state entities and employees, but removes immunity from liability for torts that arise on the basis of injuries sustained as a result of the operation or maintenance of a building. In previous cases, the New Mexico Supreme Court had ruled that there is no immunity when the negligence of a public entity creates a condition that is dangerous to the general public or a class of users of a building. The School District accordingly moved to dismiss the parents’ claims, asserting both that the injury to the student had nothing to do with the “operation or maintenance” of the school building in which the PE class was held, and that any danger created by any such operation or maintenance was peculiar to this individual student. Both the district court and New Mexico Court of Appeals agreed.

The Upton family argued to the Supreme Court that the manner in which the School District operated the school placed the student and other similarly-situated students at risk, claiming that the School had failed to advise a substitute PE teacher of the limitations which placed Ms. Upton at risk of suffering a severe asthma attack. The parents also claimed that once the student suffered the attack, the District was negligent in failing to immediately contact emergency medical personnel. Finally, the parents argued that the School had agreed with them to follow safety procedures with regard to the Upton girl, and that the School had not followed them.

The New Mexico Supreme Court held that the District’s failure to follow their established and promised health and safety procedures for at-risk students warranted waiver of the statutory immunity the District would otherwise have under the Tort Claims Act. The Court ruled in this case that the “operation of a building” includes the obligation to follow safety policies needed to protect those who use the building.

The Court found that the school had actively participated in causing Ms. Upton’s asthma attack by forcing the student to do more exercise than she was supposed to, which created a foreseeable risk that the health emergency would occur; that the school then failed to follow proper emergency procedures to deal with the resultant health emergency, which combined to cause a dangerous condition beyond that which is reasonable and expected in school life.

The Upton case has the potential of drastically increasing schools’ exposure to liability. Schools now face potential liability for failures to follow a student’s medical or health plan, a student’s individualized education plan, a student’s behavioral intervention plan, or the school’s emergency or crisis response plan. School previously enjoyed immunity for negligent actions which may have occurred which were contrary to any of those plans. Under the Upton case, however, a violation of any of those plans or policies is likely to fall within the operation or maintenance of a building exception to the general immunity from tort claims provided under the Tort Claims Act.

Furthermore, activist courts may push Upton even further to create exposure to liability for failure to follow other types of practices and procedures. Heretofore, the courts had declined to extend liability exposure for “operation and maintenance of a public building” to claims of “negligent hiring and supervision” when an employee intentionally harmed a student in some way. In such cases, plaintiffs alleged that the school’s alleged knowledge of the employee’s known proclivities, such as for violent conduct, or the school’s alleged failures to detect information in the employee’s background that would have disqualified him or her from employment, such as prior suspected instances of molestation, was negligence in the operation of the school building.

Previously, such claims were held to be barred by Tort Claims Act immunity because they had nothing to do with the operation of the building other than the happenstance that the hiring and supervision decisions were made in the building. Under Upton, however, the next plaintiff may inveigle a court to take another leap and hold that the District’s failure to follow its employment procedures constitutes negligence in the operation of the building.

In order to avoid expanded liability, schools should ensure that safety and/or security procedures are properly updated and uniformly followed. That alone will require substantial attention, but schools will also have to ensure that all information regarding a student’s individual safety and health needs provided by the student, the student’s family, or the student’s physician is noted and followed. In addition, if the school provides any special assurances to parents, or puts in place a plan which indicates that a student’s medical or health condition creates special needs, the school must discharge such additional obligation in the manner the parents were promised.

Expect to see growth in the number of tort claims against schools based on alleged failures to follow student medical plans, crisis response plans, or other policies or procedures that are alleged to have caused injury within a school building or on school grounds. Careful attention must be paid to ensure that your staff is provided training in recognizing and discharging such obligations so as to act appropriately to prevent injury and to respond quickly to such injuries when they occur.

Electronically stored information is now subject to specific “discovery” rules – the rules that govern the mandatory transfer of information between the parties – in federal litigation. In a change expected to be followed by most states, amendments to the Federal Rules of Civil Procedure provide requirements specific to electronically stored information. As the change will affect institutional litigants the most, school districts and school personnel that are parties to lawsuits will be subject to significant new burdens and requirements.

Under the new rules, the term “electronically stored information” includes any type of information that can be stored electronically, including, but not limited to, documents, email. and computer programs. Plaintiffs and defendants, including school districts, must respond to requests to inspect, copy, test, or sample any electronically stored information. A party requesting such information may also require the opponent to translate electronically stored information into a form that is reasonably usable to the requesting party.

The new federal rules do not specify how long electronically stored information must be kept, but retention will have to be at least as long as required by state document retention policies. Those times vary depending on the documents at issue. Federal law also includes document retention requirements, such as federal EEO laws.

A party that does not keep electronic records for the specified periods of time may be subject to sanctions for “spoliation” of evidence – the failure to preserve relevant evidence the party knew or should have known would be used in a lawsuit. The sanctions for spoliation of evidence can be devastating for a party in litigation. The new federal rules, however, include a “safe harbor” provision pursuant to which sanctions cannot be imposed, absent exceptional circumstances, against a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of the electronic system. The safe harbor provision provides some protection to Districts the IT systems of which automatically delete stored information periodically.

In addition to student, personnel, financial, and similar date held in electronic databases, email is often a source of relevant information in litigation, especially employment cases. Yet, organizational parties such as schools usually have no protocol for retention of email, so that decisions regarding retention and deletion of email are made by individual employees on varying and subjective bases.

The response time permitted for discovery requests are not long, and delays in responding to discovery requests can make a party more vulnerable legally, and even lead to sanctions. Accordingly, the time to prepare for compliance with the new discovery rules is before you are sued, when there is ample time and opportunity for technical and other problems to be identified and resolved. Particular attention should be given to the following items:

1. Be certain you understand how your electronic data systems work, including how often information is deleted, how the system can be stopped from automatic deletions, and what happens to information deleted from an individual unit;

2. Ensure that there is a system in place to prevent permanent deletion of any documents that may be relevant to a potential lawsuit, either by retention of paper copies or electronic storage in individual units or a mainframe;

3. Ensure that the District has on hand employees who thoroughly understand how each electronic data system functions, and can access information stored on the system; and

4. Ensure that District rules and procedures regarding computer use and document retention include provisions on storage of electronic information and frequency of deletion of electronic information.

Checking off the foregoing items will be much harder under the pressure and stress that can accompany the initiation of litigation.

The Public Education Department settled its highly publicized ethics proceedings against three Truth or Consequences educators with no finding of an ethical violation. Following the close of the second day’s proceedings – which had included testimony by Los Alamos Superintendent Dr. James Anderson, the first of four expected expert witnesses on behalf of the respondent educators – the Hearing Officer restarted settlement discussions in which PED offered an agreement that represented a substantial reduction from prior offers.

PED Secretary Veronica Garcia entered into a settlement agreement with T or C School Superintendent Jim Nesbitt, Hot Springs High School Principal Ron Williams, and HSHS English Teacher Michelle Williams, in which the educators acknowledged a mistake of judgment in approving a student-initiated project that simulated the circumstances of segregation from the mid 20^th century. The parties agreed that the project, which involved posting signs “segregating” a rest-room/water fountain facility at HSHS, created “at least the appearance of discrimination.” The T or C educators agreed to accept reprimands that will be removed from their licensure files after 18 months.

The white parents of an adopted black student had complained that the signs upset the student and were offensive. Dr. Anderson testified as the first of several of the respondents’ expert witnesses on education that the project had substantial educational value and that, in approving such a project, he would not have anticipated that it would have created more than limited consternation among a small number of students. Dr. Anderson pointed out that the actual results of the project validated that view, in that few if any students other than the complaining witness took the signs at face value or remained offended or upset after the simulation was revealed to be a student project.

A large number of HSHS students, including all the other black students at HSHS at the time of the project, were scheduled to testify that the project had not offended them and had been the catalyst for valuable classroom discussions on racial and ethnic relations.

Those students and several HSHS teachers were also prepared to testify that the project was well-planned and controlled, and that the classroom discussions it generated were valuable in helping them understand the history and injurious impact of racism. Superintendent Nesbitt expressed satisfaction that the resolution allowed the students and teachers to avoid further distraction by the case.

The Education Law Quarterly provides general information of interest to our clients and should not be used or taken as legal advice for specific situations, which depend on evaluation of precise factual circumstances.


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EDUCATION LAW QUARTERLY A PREVENTIVE LAW NEWSLETTER Vol. XIII No. 32 March, 2007 NEW MEXICO SUPREME COURT EXPANDS POTENTIAL LIABILITY FOR SCHOOL DISTRICTS by John F. Kennedy and Frank J. Albetta Although we reported about Upton v. Clovis Munc. Schools in an E-Mail Alert at the time it was issued, this article provides a more detailed review of the implications of this critical case. In Upton, the parents of a 14 year old asthmatic student sued the District after the student collapsed and died following a strenuous PE class. The parents alleged that the school was negligent in failing to immediately call 911 when the student had the asthma attack, as the school had allegedly previously agreed to do. The parents sued under the “negligent operation or maintenance of a school building” exception to the Tort Claims Act. The Tort Claims Act provides immunity from lawsuits for most tort claims for state entities and employees, but removes immunity from liability for torts that arise on the basis of injuries sustained as a result of the operation or maintenance of a building. In previous cases, the New Mexico Supreme Court had ruled that there is no immunity when the negligence of a public entity creates a condition that is dangerous to the general public or a class of users of a building. The School District accordingly moved to dismiss the parents’ claims, asserting both that the injury to the student had nothing to do with the “operation or maintenance” of the school building in which the PE class was held, and that any danger created by any such operation or maintenance was peculiar to this individual student. Both the district court and New Mexico Court of Appeals agreed. The Upton family argued to the Supreme Court that the manner in which the School District operated the school placed the student and other similarly-situated students at risk, claiming that the School had failed to advise a substitute PE teacher of the limitations which placed Ms. Upton at risk of suffering a severe asthma attack. The parents also claimed that once the student suffered the attack, the District was negligent in failing to immediately contact emergency medical personnel. Finally, the parents argued that the School had agreed with them to follow safety procedures with regard to the Upton girl, and that the School had not followed them. The New Mexico Supreme Court held that the District’s failure to follow their established and promised health and safety procedures for at-risk students warranted waiver of the statutory immunity the District would otherwise have under the Tort Claims Act. The Court ruled in this case that the “operation of a building” includes the obligation to follow safety policies needed to protect those who use the building. The Court found that the school had actively participated in causing Ms. Upton’s asthma attack by forcing the student to do more exercise than she was supposed to, which created a foreseeable risk that the health emergency would occur; that the school then failed to follow proper emergency procedures to deal with the resultant health emergency, which combined to cause a dangerous condition beyond that which is reasonable and expected in school life. The Upton case has the potential of drastically increasing schools’ exposure to liability. Schools now face potential liability for failures to follow a student’s medical or health plan, a student’s individualized education plan, a student’s behavioral intervention plan, or the school’s emergency or crisis response plan. School previously enjoyed immunity for negligent actions which may have occurred which were contrary to any of those plans. Under the Upton case, however, a violation of any of those plans or policies is likely to fall within the operation or maintenance of a building exception to the general immunity from tort claims provided under the Tort Claims Act. Furthermore, activist courts may push Upton even further to create exposure to liability for failure to follow other types of practices and procedures. Heretofore, the courts had declined to extend liability exposure for “operation and maintenance of a public building” to claims of “negligent hiring and supervision” when an employee intentionally harmed a student in some way. In such cases, plaintiffs alleged that the school’s alleged knowledge of the employee’s known proclivities, such as for violent conduct, or the school’s alleged failures to detect information in the employee’s background that would have disqualified him or her from employment, such as prior suspected instances of molestation, was negligence in the operation of the school building. Previously, such claims were held to be barred by Tort Claims Act immunity because they had nothing to do with the operation of the building other than the happenstance that the hiring and supervision decisions were made in the building. Under Upton, however, the next plaintiff may inveigle a court to take another leap and hold that the District’s failure to follow its employment procedures constitutes negligence in the operation of the building. In order to avoid expanded liability, schools should ensure that safety and/or security procedures are properly updated and uniformly followed. That alone will require substantial attention, but schools will also have to ensure that all information regarding a student’s individual safety and health needs provided by the student, the student’s family, or the student’s physician is noted and followed. In addition, if the school provides any special assurances to parents, or puts in place a plan which indicates that a student’s medical or health condition creates special needs, the school must discharge such additional obligation in the manner the parents were promised. Expect to see growth in the number of tort claims against schools based on alleged failures to follow student medical plans, crisis response plans, or other policies or procedures that are alleged to have caused injury within a school building or on school grounds. Careful attention must be paid to ensure that your staff is provided training in recognizing and discharging such obligations so as to act appropriately to prevent injury and to respond quickly to such injuries when they occur. ELECTRONIC DATA SUBJECT TO NEW FEDERAL DISCOVERY RULES by Melissa Wurtzel O’Shea Electronically stored information is now subject to specific “discovery” rules – the rules that govern the mandatory transfer of information between the parties – in federal litigation. In a change expected to be followed by most states, amendments to the Federal Rules of Civil Procedure provide requirements specific to electronically stored information. As the change will affect institutional litigants the most, school districts and school personnel that are parties to lawsuits will be subject to significant new burdens and requirements. Under the new rules, the term “electronically stored information” includes any type of information that can be stored electronically, including, but not limited to, documents, email. and computer programs. Plaintiffs and defendants, including school districts, must respond to requests to inspect, copy, test, or sample any electronically stored information. A party requesting such information may also require the opponent to translate electronically stored information into a form that is reasonably usable to the requesting party. The new federal rules do not specify how long electronically stored information must be kept, but retention will have to be at least as long as required by state document retention policies. Those times vary depending on the documents at issue. Federal law also includes document retention requirements, such as federal EEO laws. A party that does not keep electronic records for the specified periods of time may be subject to sanctions for “spoliation” of evidence – the failure to preserve relevant evidence the party knew or should have known would be used in a lawsuit. The sanctions for spoliation of evidence can be devastating for a party in litigation. The new federal rules, however, include a “safe harbor” provision pursuant to which sanctions cannot be imposed, absent exceptional circumstances, against a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of the electronic system. The safe harbor provision provides some protection to Districts the IT systems of which automatically delete stored information periodically. In addition to student, personnel, financial, and similar date held in electronic databases, email is often a source of relevant information in litigation, especially employment cases. Yet, organizational parties such as schools usually have no protocol for retention of email, so that decisions regarding retention and deletion of email are made by individual employees on varying and subjective bases. The response time permitted for discovery requests are not long, and delays in responding to discovery requests can make a party more vulnerable legally, and even lead to sanctions. Accordingly, the time to prepare for compliance with the new discovery rules is before you are sued, when there is ample time and opportunity for technical and other problems to be identified and resolved. Particular attention should be given to the following items: 1. Be certain you understand how your electronic data systems work, including how often information is deleted, how the system can be stopped from automatic deletions, and what happens to information deleted from an individual unit; 2. Ensure that there is a system in place to prevent permanent deletion of any documents that may be relevant to a potential lawsuit, either by retention of paper copies or electronic storage in individual units or a mainframe; 3. Ensure that the District has on hand employees who thoroughly understand how each electronic data system functions, and can access information stored on the system; and 4. Ensure that District rules and procedures regarding computer use and document retention include provisions on storage of electronic information and frequency of deletion of electronic information. Checking off the foregoing items will be much harder under the pressure and stress that can accompany the initiation of litigation. PED SETTLES “T OR C” LICENSURE CASE by Frank J. Albetta The Public Education Department settled its highly publicized ethics proceedings against three Truth or Consequences educators with no finding of an ethical violation. Following the close of the second day’s proceedings – which had included testimony by Los Alamos Superintendent Dr. James Anderson, the first of four expected expert witnesses on behalf of the respondent educators – the Hearing Officer restarted settlement discussions in which PED offered an agreement that represented a substantial reduction from prior offers. PED Secretary Veronica Garcia entered into a settlement agreement with T or C School Superintendent Jim Nesbitt, Hot Springs High School Principal Ron Williams, and HSHS English Teacher Michelle Williams, in which the educators acknowledged a mistake of judgment in approving a student-initiated project that simulated the circumstances of segregation from the mid 20^th century. The parties agreed that the project, which involved posting signs “segregating” a rest-room/water fountain facility at HSHS, created “at least the appearance of discrimination.” The T or C educators agreed to accept reprimands that will be removed from their licensure files after 18 months. The white parents of an adopted black student had complained that the signs upset the student and were offensive. Dr. Anderson testified as the first of several of the respondents’ expert witnesses on education that the project had substantial educational value and that, in approving such a project, he would not have anticipated that it would have created more than limited consternation among a small number of students. Dr. Anderson pointed out that the actual results of the project validated that view, in that few if any students other than the complaining witness took the signs at face value or remained offended or upset after the simulation was revealed to be a student project. A large number of HSHS students, including all the other black students at HSHS at the time of the project, were scheduled to testify that the project had not offended them and had been the catalyst for valuable classroom discussions on racial and ethnic relations. Those students and several HSHS teachers were also prepared to testify that the project was well-planned and controlled, and that the classroom discussions it generated were valuable in helping them understand the history and injurious impact of racism. Superintendent Nesbitt expressed satisfaction that the resolution allowed the students and teachers to avoid further distraction by the case. The settlement agreement creates no legal precedent in any future cases. The Education Law Quarterly provides general information of interest to our clients and should not be used or taken as legal advice for specific situations, which depend on evaluation of precise factual circumstances.
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