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Chapter 5: Negligence

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on 8 December 2013

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Transcript of Chapter 5: Negligence

Chapter 5: Negligence
As a general legal principle, civil liability for negligence accrues is a school counselor is found to OWE a duty to another person, or BREACHES that duty by not living up to expected standards and, thus, causes damages to another person. All four of the following elements must be present for negligence to be proven:
Terms to know
The Way out
A criminal law is a crime against society. The degree of a crime can be categorized as either a felony or a misdemeanor, with a felony carrying a longer prison term.
A civil wrong is a wrong against another person that causes physical, emotional, or monetary damage and for which the plaintiffs can seek compensation.
Criminal vs. Civil Law
School counselors who find themselves in legal difficulty are frequently defending themselves in a negligence or civil wrong case. School counselors charged with job-related criminal activity are usually defendants in a case of sexual abuse of a minor student in their school.
Negligence is a civil wrong in which one person breaches the duty owed to another.

Malpractice is the negligent rendering of professional services.
The school counselor owes a duty to a student or parent/guardian of a student.

What would an example be of a duty owed?
The school counselor breaches the duty owed (i.e., confidentiality).
There is sufficient legal casual connection between the breach of duty and the injury.
The student or parent/guardian suffers an injury or damages, and an assessment is made.
Duty requires the establishment of a relationship whereby the defendant owes the plaintiff a duty to act responsibly.

A school counselor taking a class to the beach for a field trip is acting in loco parentis; therefore, that counselor owes a duty to ensure the safety of all attending students.
The judgement as to whether or not a breach has occurred with regard to the duty owed is centered on the issues of reasonability and an agreed-upon standard of care. Reasonableness includes to precautions you take.

Did the counselor have enough chaperones on the trip? Did the counselor keep all students in sight? Did the counselor take a first aid kit? Did the counselor tell the students not to enter the water while at the beach?
"What would a reasonable competent school counselor do in a similar situation?" The school counselor, as defendant, would have to show that s/he behaved with reasonable care.

The ASCA outlines reasonable actions, policies, and procedures in the National Model.
Casual connection
There must be a casual connection between the school counselor's breach of duty and the injury suffered by the student. Liability in a negligence case hinges on causation. Proximate cause refers to the foreseeability of harm or whether the school counselor could have predicted the harm.
Injury suffered
Assessment refers to determining monetary damages needed to compensate for the harm an individual suffers, such as injury, lost scholarship, or death. "Nominal damages" can be awarded in cases where actual cost cannot be determined. "Punitive damages" are awarded in cases where the intent is to punish the defendant and deter similar future actions.
Educational malpractice
To prove malpractice, there must be a comparison between the acceptable standard of care for the school counseling profession and the specific act or conduct claimed to be malpractice. The testimony of an expert witness, another school counselor, or someone well versed in school counseling often helps determine whether or not the defendent met the professional standard.
Standard of care
The standard of care is established in a variety of ways: expert witness, adherence to and participation in professional licensing and credentialing, educational degree preparation, knowledge of school board policies, in-service participation, etc.
Historically, school districts have had governmental immunity or protection from civil liability. In most states with regard to negligence, malpractice, or civil liberty individual employees are protected from personal liability if they are not acting in a willful or wanton way.
Negligence in eating disorders
Karen has been a regular in your office for the last two years. She has serious problems, and you have implored Karen's step-mother (you can never get her father to respond) to get her some help. Lately, you believe Karen is suffering from bulimia... When you confront Karen, she does not answer but rather starts a long diatribe about how you cannot tell her father because he'll send her to live with her birth mother. Karen has all but admitted to you that she is bulimic, and you know her assessment of her father's reaction is probably accurate. You decide to help Karen without calling her parents. The unthinkable happens, and Karen suffers heart failure. You are sued for negligence. How do you believe the courts will react?
Consult with other counselors
Harming herself
People suffering from bulimia need more support than can be delivered from one school counselor
Negligence in academic advising
Bert was lured to your school by the basketball coaches. His school counselor was not able to match his courses from his previous school, and scheduling Bert was a feat. The summer after graduation Bert learned that he did not have enough English credits for NCAA eligibility. Are the school counselors liable?
The school counselor owed a duty in this situation to advise a student with due care and attention.
He had to submit the English class to the NCAA for approval.
Would it negatively impact other students, i.e., if they were trying to fulfill their A-G courses in California?
Negligence in writing letters of recommendation
You are a high school counselor in a diverse public school. One of your seniors, Connie, asks you for a letter of rec. You have not worked with Connie other than a brief conversation over a schedule change. You asked a teacher who happened to be in the counseling office what he thought of Connie, and his opinion was that Connie excels academically and athletically, but lacks character, "always in it for herself, not a team player." This teacher appeared to know what he was talking about, so you sent the university a letter emphasizing Connie's self-centeredness. Are there any legal and/or ethical issues that may arise?
She's a senior and the counselor has only briefly met with her one time??
To which university was she applying?
Were there no other teachers or coaches who could have spoken about her with more knowledge?
Students sign away their rights to read the rec letters.
Negligence and duty owed
A student tells you her friend, Jocelyn, one of your students, is threatening suicide. When you call Jocelyn into your office, she vehemently denies any consideration of suicide, scoffing at the idea that she would ever harm herself. You are convinced there is no basis for concern, and you drop the issue without discussing it with anyone else. Do your actions pose an ethical or legal dilemma?
A legal and ethical dilemma
Intention to harm herself
Opportunity for proactive programming
Alerting her parents/guardians - models the seriousness of suicide, more people can be on the lookout for behavioral changes, duty owed
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