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Assignment 1: The Slide Liability Assessment

Correa, J., Kiszczak, J., Shi, K., & Wong, K.

Education 525: Ethics and Law in Education

Professor Rhiannon Jones

Werklund School of Education, University of Calgary

October 13, 2021

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Ms. Morgan’s Liability in Negligence

The defendant is The Cowtown School Board of Education, vicariously responsible for

Ms. Morgan. The plaintiff in this case is Dakota, on behalf of her parents.

The defendant is an employee of Western Canada Elementary School where the plaintiff

attained her traumatic head injury. It has already been established that the defendant was the

supervisor in charge of the recess period for Division 1 of the school, but she had no knowledge

of the history of bullying between Ellen and Dakota. To fully assess the defendant’s liability, we

will thoroughly investigate the occurrence through the tort of negligence test. According to the

fact pattern, Ms. Morgan, as an employee of the school, owed a duty of care to the plaintiff and a

standard of care in loco parentis (Deo v Vancouver School District No 39, 2018). In other words,

the defendant has both a legal and professional liability governed by the Criminal Code and civil

law in relation to their duty of care for students (Jones, 2021), in which their responsibility level

is equivalent to that of a careful and prudent parent (Deo v Vancouver School District No 39,

2018).

At the beginning of the school year, students and teachers review the Student Handbook,

which indicates that students must help keep the school safe and create a positive school attitude.

Additionally, the handbook indicates that students should not engage in acts of bullying or

violence. The defendant had not taught either students, meaning she was not in charge of

reviewing the student handbook with the class at the beginning of the year. Thus, we can say

there is no correlation between the defendant and the plaintiff’s breach of the student rules.

Furthermore, Ms. Morgan did not breach the supervision policy enforced by the school, which

stated that “during recess, lunch hour, and before and after class, one teacher must directly
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supervise the playground area at all times.” Ms. Morgan was doing her supervising duties as

stated in the policy, directly supervising the playground.

From the information provided in the case, the harm suffered by the plaintiff is

sufficiently proximate since the defendant was actively supervising during the incident. Ellen

pushing the plaintiff is also foreseeable due to the incidents that occurred the prior year,

specifically the incident where Ellen physically harmed the plaintiff. We realize that neither the

manner nor the extent of harm needs to be foreseeable to recognize that the damage caused to the

plaintiff is not remote; but for Ms. Morgan’s lack of knowledge of the relationship between Ellen

and Dakota, the harm would have likely not occurred as she would have been more attentive to

their play. In the school’s supervision policy, it is directly stated that “each supervising teacher

must circulate, be highly visible and engage students while carrying out their duties”. However,

Ms. Morgan was not engaging with students during her supervision, and was instead standing 20

feet away, which caused her inability to reach the slide in time. Ms. Morgan’s failure to

adequately supervise results in a breach of the supervision policy. In addition, “it is appropriate

to consider the careful and prudent parent standard with respect to the occupier’s duty” (Deo v

Vancouver School District No 39, 2018, para. 121). That is, it is the responsibility of the school

and school staff to ensure the safety of visitors on school premises in accordance with the

Occupier’s Liability Act (2019). The defendant’s failure to comply with the Occupier’s Liability

Act (2019), along with the failure to realize the dangers of playing Grounders and not halting the

activity breaches both the Duty of Care and the Standard of Care to the plaintiff.
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The Cowtown Board of Education’s Liability

According to the case of Bain v Calgary Board of Education (1993), “a general duty of

care arises when there is a close enough relationship between the parties, that reasonable people

would expect that the one would take care not to expose the other to an unreasonable risk of

harm” (para. 40). With this in mind, the defendant owed a Duty of Care to the plaintiff as the

plaintiff was a student enrolled at Western Canada Elementary School, and this incident occurred

on school property during school hours. The defendant, then, is also compliant to the Occupiers’

Liability Act (2019), which states that “an occupier of premises owes a duty to every visitor on

the occupier’s premises to take such care as in all the circumstances of the case is reasonable to

see that the visitor will be reasonably safe in using the premises for the purposes for which the

visitor is invited or permitted by the occupier to be there or is permitted by law to be there” (pp.

3-4). For these aforementioned reasons, the Standard of Care owed by the defendant to the

plaintiff is in loco parentis, that of the careful and prudent parent, in which “fault can only be

found if the school authorities failed to exercise the kind of care that could be expected of a

reasonably careful and prudent parent in all the circumstances” (Deo v Vancouver School

District No 39, 2018, para. 121).

The argument for holding the defendant liable for its own independent negligence is the

failure to prohibit playing Grounders after another student in Oilertown, Alberta was

catastrophically injured while playing the same game and fell off the platform, also due to his

eyes being closed, two months prior to the plaintiff’s incident. Similarly, in the case of MacCabe

v Westlock Roman Catholic Separate School District No 100 (2001), “the [gymnastics]

manoeuvre, which led to [the plaintiff’s] injury, while not explicitly authorized by [the

defendant], was not forbidden. The learned trial judge expressly found [that the defendant] did
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not clearly instruct which activities were allowed and which were prohibited” (para. 30). We

would argue that what matters is that the activity that caused injury (i.e., Grounders) was not

prohibited despite the factors that made playing the game unsafe for students (i.e., having their

eyes closed during the game). On the other hand, the arguments for holding the defendant

vicariously liable as Ms. Morgan’s employer includes the failure to inform Ms. Morgan of the

history of bullying between Ellen and the plaintiff, especially when she is responsible for their

supervision. Thus, we would argue that the risk of the plaintiff being pushed off the slide was

reasonably foreseeable as Ellen had been bullying the plaintiff the year prior and has been

disciplined for a previous physical incident (i.e., the scratching incident followed up by a one-

day suspension). An additional argument for holding the defendant vicariously liable as Ms.

Morgan’s employer includes the supervision policy which states that “each supervising teacher

must circulate, be highly visible and engage students while carrying out their duties”. We would

argue that Ms. Morgan was not circulating nor engaging with students during supervision, but

rather was watching the Grounders game from about 20 feet away, therefore being unable to

react in time.

There was causation between the breach and the damage sustained, which was ultimately

Ellen pushing the plaintiff off of the slide. That is, but for the defendant informing Ms. Morgan

of the history of bullying between Ellen and the plaintiff, Ellen shoving the plaintiff off the slide

would have been reasonably foreseeable. Moreover, but for Ms. Morgan circulating and

engaging students while carrying out her duties, Ellen would not have run up behind the plaintiff

and shoved her in the back. Lastly, but for the defendant banning Grounders thereafter a student

in Oilertown, Alberta was catastrophically injured while playing Grounders, Ellen and the

plaintiff would not have been playing Grounders and the incident would not have occurred.
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The harm suffered by the plaintiff was sufficiently proximate to justify compensation

from the defendant as a Duty of Care and consequently, a Standard of Care, was owed; that is,

Dakota was a reasonably foreseeable plaintiff due to the relationship between the Cowtown

Board of Education and Dakota. With this in mind, the harm was not too remote. The harm was

foreseeable considering Ellen and Dakota’s relationship and the history of bullying the year

prior. In addition, falling and injuring oneself on playground equipment is reasonably

foreseeable, especially when students have their eyes closed playing Grounders.

The arguments against holding the defendant liable for its own independent negligence

and vicariously as Ms. Morgan’s employer includes the Student Handbook, which each teacher

reviews in detail at the beginning of the school year with their class, indicates that students shall

“keep the school safe”, “play safe”, “respect others” and “help create a positive school climate” .

Moreover, the Student Handbook indicates that students shall not engage in “bullying”,

“violence”, and “dangerous and reckless behaviour”. We would argue that all students, including

the plaintiff, would have known of the behaviours expected from them, especially with regard to

playing safe. An additional argument against holding the defendant liable for its own

independent negligence and vicariously as Ms. Morgan’s employer includes the aforementioned

supervision policy which states that “during recess, lunch hour, and before and after class, one

teacher must directly supervise the playground area at all times”. We would argue that Ms.

Morgan was directly supervising the playground area at all times as she was watching the

Grounders game attentively.

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Dakota’s Contributory Negligence

The plaintiff was contributorily negligent as she should have known better based on her

knowledge from the Student Handbook to “play safe”, and closing her eyes on playground

equipment is not safe play. The plaintiff was also presumably present for the review of the

handbook at the beginning of each year by their classroom teacher in detail with the students.

The plaintiff should have also perceived the risks of engaging in play with a student that has

ongoingly bullied her in the prior year, as the plaintiff had experienced not only emotional and

social bullying, but also physical bullying from the aforementioned student.

The plaintiff was not contributorily negligent as the game of Grounders was not

prohibited by the Cowtown Board of Education nor by Western Canada Elementary School.

Rather, as stated in the fact pattern, every student, teacher and the principal acknowledged that

the game of Grounders was the most popular game to play on the playground at the school. The

game of Grounders was not banned at the time and therefore the plaintiff could not have known

that it is not safe behaviour if it is not prohibited by the school, and as noted in MacCabe v

Westlock Roman Catholic Separate School District (2001), what mattered is that the activity that

caused injury was not prohibited. The plaintiff could not have predicted that she would be

shoved from behind down the slide with her eyes closed, as she had confidence in her knowledge

of the playground equipment and was approached from behind. Furthermore, the plaintiff is

considered in her tender years in the second grade and a child of like age cannot be reasonably

expected to foresee the harm (MacCabe v Westlock Roman Catholic Separate School District,

2001). A child of like age cannot guard against every risk, and the age of the plaintiff does not

necessarily allow them to do so in the same way that an adult would in regards to factors of age,
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intelligence, experience, and alertness (MacCabe v Westlock Roman Catholic Separate School

District, 2001).

Concluding Statements and Apportioning

Based on the above factors, we would argue that the plaintiff is not wholly contributorily

negligent. However, her not “playing safe” on the school ground affects her liability. The

plaintiff is at an age and intelligence level where we argue that she knows the dangers of playing

on playground equipment with her eyes closed. We conclude that the liability apportioned to the

plaintiff is 15%.

Based on the above factors, we would argue that the defendant is liable in their

negligence through the breach of the Duty of Care and Standard of Care (Deo v Vancouver

School District No 39, 2018) owed to the plaintiff, and vicariously liable for the negligence of

their employee. There was causation between the breach of the Standard of Care (Deo v

Vancouver School District No 39, 2018) and the damage sustained. We conclude that the liability

apportioned to the defendant is 85%.

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References

Bain v Calgary Board of Education, 1993 CanLII 7301.

Deo v Vancouver School District No 39, 2018 BCSC 133.

MacCabe v Westlock Roman Catholic Separate School District No 100, 2001 ABCA 257.

Jones, R. (2021) Educator’s negligence and liability. [Lecture slides].

https://ucalgary.yuja.com/V/Video?

v=382592&node=1460032&a=804913495&autoplay=1

Occupier’s Liability Act (2019, December 5). Alberta Government. Retrieved October 12, 2021,

from https://www.qp.alberta.ca/1266.cfm?

page=O04.cfm&leg_type=Acts&isbncln=9780779814909