What are our rights if my child was injured in an auto accident during school hours at a private school?

UPDATED: Feb 7, 2014

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What are our rights if my child was injured in an auto accident during school hours at a private school?

The insurer is seeking to dismiss my claim because they say that the school’s actions must be wanton and willful. Isn’t there a difference in what must be proved between a public school and a private school?

Asked on February 7, 2014 under Personal Injury, Illinois


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If your child is injured at school or during a school activity, you may be able to recover financial damages from the school district to pay for your child's medical bills and other costs.  Before you take any action after a child's injury at school, take note that pursuing a lawsuit against a school can be complicated and require careful attention to legal deadlines and procedures.  Speak with an experienced personal injury attorney to see if the school is liable for your child's injuries. 

Before Filing a Lawsuit Against a School

Before filing a lawsuit for negligence against the school, your child should complete medical treatment for his or her injuries. When treatment is completed and your child is released by the doctor, obtain the medical bills and medical reports. Your child's claim should include the medical bills and compensation for pain and suffering. The medical reports will document the nature and extent of your child's injuries and determine the amount of compensation for pain and suffering. Compensation for pain and suffering is an amount beyond the medical bills. Since your child is a minor, you will need to be appointed guardian ad litemto sue on behalf of your child.

School District Immunity

Every state has established rules regarding when and how government entities like schools can be sued. When a state adopts rules that essentially prohibit lawsuits against governmental entities, they establish what is called “governmental immunity.” Government immunity does not necessarily mean you can't take legal action, however, it means that you can only do so under certain exceptions which are defined by state law. 

Depending on the how your child was injured, you may be able to show that an exception applies to your situation.  If you fit an exception, then you should be able to proceed with a negligence claim against the school district for the injuries to your child. You may also be able to pursue criminal charges against the school employee for reckless or intentionally injuries to your child.

Before you sue a school district, contact an attorney who specializes in personal injury or government law to see if your state’s governmental immunity laws apply to school districts. If the governmental immunity statutes do apply to school districts, you will then want to explore your state’s exceptions.

NOTE: Governmental immunity generally applies to public school districts. If your child attends a private school, even more options may be available to resolve your claim. Options can include a suit for negligence or simply filing a claim on the school’s insurance policy.

School Liability Issues

As with any personal injury lawsuit, if you are suing a school for injuries to your child, then you will need to prove negligence by showing the school owed a duty of care to your child, that it breached the duty of care and that this breach was the actual and proximate cause of your child's injuries. The courts will look to several factors to determine if you have met your burden of proof.

Two main factors to consider include the cause of the injury or how the injury occurred. Was the injury caused by inadequate supervision of your child by school employees? If teachers were negligent in the supervision of your child, then the school could be liable for the negligence of the teacher’s actions during the course and scope of their employment. If a teacher was doing something outside the course and scope of their employment, the school may be able to claim that it was not liable.

Next, your focus should be on the nature of the injury and whether or not it was foreseeable and therefore something a reasonable school should have prevented. Examples of potential, foreseeable incidents include:

  • A child injured after falling from playground equipment;
  • A child injured due to bullying at school or negligent acts by fellow students;
  • A child injured due to unsanitary conditions;
  • A Child injured after bumping or tripping over an object.

These are only a few potential examples of foreseeable harm that a reasonable school could have taken precautions to prevent. There are numerous other potential causes of your child's injury at a school. The facts of your particular case and your child's injury will determine whether or not the school was negligent by failing to exercise due care.

Note:  If your child is injured due to bullying at school or negligence from a fellow student, the parents of the responsible child may also be responsible depending on how serious the incident was.  In those cases, you may be able to pursue the school for negligent supervision and potentially the responsible child's parents for the actions against your child.

Once you establish a duty of due care and a breach of that duty of due care on the part of the school, you need to prove causation. Causation requires the court to ask, “But for the school not taking precautions, would your child have been injured?” If the answer is no, then you have established the negligence of the school was the actual cause of your child's injuries. You then need to establish that the school was also the proximate cause of your child's injuries.

Proximate cause asks whether there were there any intervening events that were unforeseeable that contributed to your child's injury? If the answer is yes, the school is not negligent. If the answer is no, the school is negligent. If you can prove all of these elements, you can establish that the school is negligent and, therefore, liable for your child's injuries.

School District Lawsuit Settlements

Prior to filing a lawsuit, present your claim to the insurance carrier for the school. Before you sign a settlement agreement prepared by an insurance company, you may want to have an attorney who specializes in personal injury law review the proposal to make sure that you do not accidentally waive any of your child’s rights or remedies. If you are dissatisfied with settlement offers from the insurance carrier, then proceed to file a lawsuit for negligence against the school.

If the case is settled with the insurance company for the school, no lawsuit will be filed. If the case is not settled, you must file the lawsuit prior to the expiration of the statute of limitations or you will lose your rights forever in the matter. Contact a person injury attorney in your state to learn what the deadlines are for your child’s situation.

I suggest that you consult with a personal injury attorney in your locality as to your child's injury. One can be found on attoirneypages.com. You are not required to show wanton and willful conduct. There is no difference between a public and a private school for injuries.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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