A bill that has passed the state Senate would put Colorado’s public schools in the same legal conundrum that existing law too often puts businesses in: proving, after something has gone wrong, that precautions taken to prevent an injury were indeed “reasonable.”
With 20/20 hindsight, it’s easy to second-guess decisions that might have averted an unfortunate outcome.
In a slip-and-fall injury case against a retail business, a personal injury lawyer will suggest to a jury that it would have been “reasonable” for a business owner, for example, to clean showroom floors with a different product that perhaps would have been less slippery than the one in use when a customer fell and was injured. Perhaps, with 20/20 hindsight, that might have been a better choice, even if no one had ever fallen previously.
Of course, second-guessing a slip-and-fall injury seems almost trivial when compared to the soul-searching that occurs in the aftermath of a tragedy involving school violence. In school tragedies, finding answers is imperative, but that can be better accomplished by relieving the threat of litigation, not encouraging it as does Senate Bill 213.
The parents of Claire Davis, the Arapahoe High School student for whom a portion of the bill is named, ultimately chose information over litigation, settling their dispute with the school district in exchange for an agreement to release all details regarding their daughter’s murder. But SB 213, if not amended to make such agreements less contentious in the future, would increase the threat of litigation against schools.
SB 213 would encourage lawsuits by charging schools with a greater duty to protect public safety than currently applies to law enforcement. Courts have long held as a fundamental principle of American law that government has “no general duty to provide public services, such as police protection, to any individual citizen.” Instead, the duty is to protect the public at large.
Even when citizens believe government has created conditions that make them vulnerable, the Tenth Circuit (which includes Colorado) says liability occurs only when the risk is obvious or known, the government acted recklessly in conscious disregard of the risk, and “such conduct, when viewed in total, is conscience-shocking.”
School leaders shoulder many responsibilities — including safety — as they educate our children, but unlike law enforcement officers, they are not public safety experts. Existing liability law recognizes this role of schools. Currently, schools can only be sued in these circumstances for willful and wanton misconduct — i.e., acting with reckless disregard of a danger or knowing that the conduct in question would likely result in injury. SB 213 reduces that standard to simple negligence, a test that a jury must answer by asking, “Would a reasonable person have done the same thing?”
The obvious problem is that a reasonable person with 20/20 hindsight surely would have done things differently to avert a tragedy. The jury cannot “unlearn” what it knows about a school tragedy, so it’s not hard for a skilled personal injury lawyer to make a case that a simple change here or there would have been reasonable.
School officials at Columbine, Platte Canyon and Arapahoe high schools undoubtedly have spent many sleepless nights thinking, “If only … .” Yet, some 1,800 public schools across our state follow virtually identical procedures but haven’t experienced the tragedies that befell those schools. Perhaps those schools were simply more fortunate. However, a school should be sued only when it does something wrong — not because of its misfortune to be in the path of someone intent upon inflicting injury or death.
We want our schools to be safe. We want them to provide sound education. We want parents to have access to vital information. But litigation is not the way to advance those goals.
Lee Mickus is vice president of the Colorado Civil Justice League’s board of directors ().
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