Common law tort
In addition to the Consititutional considerations, there is always tort law to consider. Tort (commonly known as negligence law) is a state law claim, and can vary state to state.
State tort remedies may be available where staff and educators had a duty to act, but failed to do so. Under the Restatement, a duty to provide aid or protection is imposed when one who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the person of his normal opportunities for protection has a duty to take reasonable action to protect them against foreseeable and unreasonable risk of physical harm.
The courts have found that facilities, schools and their employees have a duty to supervise, provide adequate and appropriate instruction prior to commencing an activity that may pose a risk of harm, and provide a safe environment. This duty extends to consumers who are cared for full time and students while they are in the custody or control of the school. Facilities and schools also have a duty to supervise consumers and students off school grounds when they have caused them to be there such as while on field trips, extracurricular events or while the consumer or student is being picked up, dropped off or transported (bussed) to and from the facility or school.
In carrying out his duties, one is expected to act as an ordinary, prudent, and reasonable person considering all of the circumstances involved. Failure to do so can result in liability.
The standard varies for professionals. Defendants who are professionals will be held to a standard based on the skills or training they should have acquired for that position.
