Saturday, April 7, 2012

Tort Liability and Contract Liability

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Tort Liability and Contract Liability

A tort is a legal term for a wrong. The tort law is composed of state statutes and court decisions that gives one the right to sue someone who causes harm to them, whether its a drunk driver, a corporation that manufactures a defective product, a credit card company that overcharges you, or a government bureaucrat that breaks the law or a school official such as a teacher or principal. The law of the state in which the school is located determines a school’s legal responsibility for supervision during instructional time and school-sponsored activities. In most instances, the way its state courts have interpreted the law developed through cases tried in its courts rather than law passed by its legislature. This means there is no one uniform standard of legal liability that applies to all U.S. educational entities. Additionally, there currently is no specific federal law in this area with which a school must comply. However, there are some general principles that most state courts follow that provide some guidance to help determine if a school is providing adequate supervision in the eyes of the law. Because these principles may vary from state to state, a school’s legal counsel is the best guide as to whether a school’s particular supervision/emergency care plan will be deemed adequate if challenged in a state’s courts.

The law apportions torts into three classes negligence, strict liability (where ones duty is defined in statute), and intentional torts. Most of what follows deals with the theory of liability that arises in a school context under the tort of negligence. The most common legal claim that is made against a school is that the school was negligent in the provision of that care. In most states, to prove a school was negligent the person making the claim must establish in court that

1. There was a duty of care or obligation recognized by law that required the school to meet a certain standard of conduct, and

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. The school failed to meet that standard, and

. The school’s failure to meet that standard caused an injury to the person, and

4. A true loss or damage resulted to that person.

The general rule is that the duty of care owed by a school to its average student is what is deemed as “ordinary” duty of care. Constant supervision is not required of all activities. Instead, only reasonable care must be taken to protect the average student against reasonably foreseeable dangers. In school law, torts of negligence grow out of a duty or standard of care that the school as an institution or its personnel owes to others who come on school grounds. Essentially, in school law, school personnel must protect students against unreasonable risks of injury. The standard of care increases as the age or capacity of the student to protect her/himself decreases. Since young people act on impulse, adult caregivers must account for this impulsiveness in the course of supervising and instructing students.

Administration must be prepared for anything. School property must be safe for anyone that is on school property. The standard of care due people who trespass on school property is the lowest because they shouldnt be on school property in the first place. Licensees are people who do business with the school and visitors are those you induce or invite to come. Hence, liability is higher if these people are injured on school property because you didnt maintain it properly. Because, however, schools primarily deal with children and one can foresee a childs returning to school property after the school day, the doctrine of means that schools have a high standard of care owed to trespassing students. Not only could they drown in the swimming pool, they could fry their little brains by inhaling the fumes from industrial cleaning supplies. And they could be harmed by stepping into a pothole as they flee from is risking foolishly a tort suit. A business would have a lower standard of care owed to juvenile trespassers than a school in general because students dont typically trespass in an accounting firm; a business that dealt in things in which children are interested and more likely to trespass would acquire a higher duty of care.

A swimming pool or game room for example is by its very nature enticing to children who, acting on impulse, venture to these areas after hours. Good metal doors that are locked after hours are a good defense to negligence claims. The school must take reasonable care to guard against maintaining a potentially dangerous attractive nuisance; it cannot eliminate all risk, especially against trespassers who go to great length to gain access to a swimming pool or game room.

The ability to forsee happens most often in cases that arise out of a failure to supervise. But there are minimum standards of duty that school personnel must comply with teachers have a duty to supervise on school grounds, during the school day, any children of whose presence they become aware. Again, the duty is reasonable supervision and it ends with the school day or with the termination of a school-sponsored activity.

School districts spend billions of dollars each year procuring supplies and services. These procurements range from simple items such as the general office school supplies such as paper and chalk to constructing buildings requiring the most state of the art technological advances such as CAD and electronic HVAC. Usually these purchases involve contracts made with vendors. The basic laws that apply to regular business contracts also apply to contracts made of individual school districts. The basic elements of a contract are the following

1. A contract is an agreement between two or more persons to exchange something of value.

. A contract requires offer, acceptance, mutual agreement, and consideration. Consideration is something given in exchange for something else.

. Parties do not have to explicitly say, “we agree” in order for a contract to be valid. Courts can infer agreement from certain actions.

4. Minors may make contracts, but as a general rule they cannot be forced to carry out their promises and may cancel or refuse to honor their contracts.

5. Most contracts can be written or oral, with the exception of contracts for the sale of land or real estate, contracts for the sale of goods priced at $500 or more, agreements to pay another person’s debt, and agreements that cannot be performed within a year from the date of the agreement.

6. Some contracts are unenforceable in court because they are illegal. For instance, a person cannot contract to sell illegal drugs to another person. Also, contracts can be considered unenforceable if they are so unfair, harsh and oppressive that they can be considered unconscionable.

7. Courts are more likely to find a contract unconscionable when (1) the consumer is presented with a contract on a take it-or-leave-it basis and () there is uneven bargaining power between the parties.

A mutual offer and acceptance refers to the subject matter, in reference the price, time of the performance and other particulars. Consideration is the value that is placed on the promise or the performance. Bother parties must be legally competent and are legally authorized by law to enter into a legal relationship. Contracts that are beyond the power of the school board are unenforceable. Also, if the law prohibits the terms of the agreement, then no agreement can be made. For a contract to be legal and valid, all legal requirements must be met.

When a school district is involved in a contract with involves more than a certain amount of money, a competitive bid must be placed. According to the Oklahoma Competitive Bidding Act of 174 there is a certain procedure that must be followed. The school must first notify all prospective bidders through local newspapers and trade journals. The school district must name the character of the proposed public construction contract, the name and the address of the officer in charge of the bidding, and the date time and place of the opening of the sealed bids. The Bidder then in turn must make a deposit by certified check, cashier’s check or bid bond equal to five percent of the bid, provide an irrevocable letter of credit, and provide information about their business relationships.

There are certain steps that must be followed when a company and/or vendor presents a bid. Bids must not be submitted 6 hours before the time set for the opening of the sealed bids and cannot be submitted after the time set for opening of the bids. The sealed bids are opened at a public meeting, which is usually at a school board meeting. The contract must be award within 0 days to the “lowest responsible bidder.” Once awarded, the contract must be executed within 60 days. Various problems can arise in the competive bidding process if the school board and/or vendors are found to be in violation of any of the following nepotism, collusion among bidders, advance notification of information, suits for injunction, and/or not awarding the contract to the “lowest responsible bidder.”

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