The parents of an East Antioch Elementary student are pressing charges against a substitute teacher after hearing their 11 year old son’s story of how she assaulted him in class. Teachers are advocates for students and this type of behavior is uncalled for. There is no situation when it is okay for a teacher to man handle and leave marks on a child. I am outraged. The Shawnee Mission School District spokeswoman confirmed the teacher is being made unavailable district-wide at least until the investigation is complete. The Overland Park Police Department Spokesman Gary Mason says they have not spoken to the teacher yet, but are making an effort to contact her. If she is found at-fault, Mason says she’ll be charged with battery.
You will need to retain a personal injury lawyer. What follows is based on New York law, but the principles are nearly universal. If you plan to sue for Battery and/or Assault, beware that the district might not cover damages, as these intentional acts are undertaken outside the scope of employment. Once the school official launches into an intentional assault or battery, the district will usually disclaim. HOWEVER, a cause of action for negligent hiring and negligent retention will lie against the school and the district along with the relevant personnel. To prove such a case, one must prove that the district knew or had reason to know that this teacher had a propensity for violence.n good luck to you.
I am not sure why you are looking for an attorney. From your posting it does not sound as if the child is yours. He and his parents can sue the teacher and the district. If the Overland Park Prosecutor believes a crime has been committed they will file a case against the teacher. If the matter is more serious the Johnson County District Attorney's office will file charges in district court. Criminal charges will be prosecuted by the city or state. I do not understand why you are looking for an attorney.
The students may have claims under both federal and state law. Those claims are outlined separately below.
Potential Federal Law Causes of Action
4th and 14th Amendments (via 42 U.S.C. § 1983):
o Public schools may be liable to students for depriving those students of an independently existing federal or constitutional right. 42 U.S.C. § 1983 provides that plaintiffs may seek both monetary damages and injunction relief. There are two potential federal constitutional rights at issue when a public school student is hazed while on school property and/or engaging in school activities: (1) the Fourteenth Amendment right to “bodily integrity,” and (2) the Fourth Amendment right to be free from “unreasonable search and seizure” and “excessive force.”
4th Amendment: This Amendment, applied to state and local governments (including public schools) through the 14th Amendment, guarantees a student’s right to be free from “unreasonable search and seizure” and “excessive force.” Courts have reached different conclusions as to whether this right provides a cause of action for public school students who are victims of hazing.
• Some courts have dismissed hazing claims against public schools after finding that attending a public school and/or participating in a school-sanctioned activity (e.g., football) does not constitute a “seizure” within the 4th Amendment. See, e.g., Reeves v. Besonen & Owendale Gagetown Area Schools, 754 F. Supp. 1135 (E.D. Mich. 1991).
• Other courts have allowed students to allege 4th Amendment violations against public schools when the students show “a pattern of unconstitutional conduct that was participated in by school officials.” See Hilton v. Lincoln-Way High School, 1998 WL 26174 (N.D. Ill. Jan 14, 1998).
14th Amendment: SCOTUS has held that individuals have a constitutionally protected right to “bodily integrity.” When the student sues a public school for violation of this right based on hazing by other students, the student must prove that the school acted with “deliberate indifference” to the hazing by failing to prevent the harm despite its knowledge of prior violent behavior (e.g., past instances of hazing).
• Even if the student makes this allegation, there is still an issue as to whether the school has an affirmative duty to protect the student.
• Some courts have held that public schools do not have an affirmative duty to protect students participating in extracurricular activities, like football, even when school officials are aware of prior instances of hazing. See Reeves v. Besonen & Owendale Gagetown Area Schools, 754 F. Supp. 1135 (E.D. Mich. 1991).
• Other courts have addressed the issue differently, finding that public schools could be liable to a hazed student under a “danger creation” theory. Under this theory, the school could be liable to the student if school officials engaged in “extremely reckless or intentional acts sufficient to create a danger that causes harm to the plaintiff.” Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996).
Potential State Law Cause of Action:
Negligent Supervision: Some courts have held that school officials have a “duty to supervise” students. If a student can show that the school had a duty to supervise and breached that duty, resulting in a foreseeable harm to the student, the school may be liable under a theory of negligent supervision.
o Some courts have used the theory of negligent supervision to hold schools liable for hazing injuries to students engaged in school athletics. See Rupp v. Bryant, 417 So. 2d 658 (Fla. 1982). These cases generally turn on whether the hazing was foreseeable. A few courts require the school to have actual knowledge of prior instances of hazing, while other courts attribute knowledge to schools even if school officials lacked actual knowledge because “a lack of deportment in unsupervised students is to be expected.” Id.
School’s Potential Defense:
o KTCA Immunity: In Kansas, the Kansas Tort Claims Act limits
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