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Teachers, Supervisors and Custodians: Their Legal Liability Regarding Children

Parents often leave their minor children in the temporary care of a teacher, daycare, summer camp, or even a sports team. In so doing, they are in effect temporarily delegating parental authority. The teacher, childcare worker, or supervisor gains some control over the child, but also takes on responsibilities toward both the child and society.

When we think of the acts of a child for which an adult can be held responsible, we often think of a child who breaks something or who hurts another. However, current events have led to new rules in this domain… It is now important to know what to do if a child comes to school with a gun…

In this Infosheet, Éducaloi explains the extent to which any person who temporarily assumes custody of a minor child may be held liable.

Who is a custodian, supervisor, or educator?

Legally, any person who has the custody, supervision, or education of minor children can be held liable for damages the minor causes.

School teachers and playground monitors come to mind first, but many other people have custody over minor children, such as coaches, dance instructors, music teachers, lifeguards, daycare workers, summer camp monitors, and defacto spouses temporarily supervising the child.

As a teacher, how am I liable if a child in my custody causes damages?

As a teacher, you are responsible for the custody, supervision, and education of minor children. You have been temporarily delegated the right of control and supervision over the children by the parents (in law, this is called “delegation of parental authority”). Because you are in charge and the child is under your control, the law states that you may be liable for damages caused by that minor child.

If a child in your custody damages property or harms another person, the law assumes that you are at fault. It assumes that the damages would not have occurred if you had provided adequate custody, supervision, or education.

This responsibility imposed upon you by the law is not absolute. You can rid yourself of the assumption made by the law by proving that you didn’t commit a fault in the custody, supervision, or education of the child. For example, you could argue that your obligation of supervision had ended before the child acted to cause the damage. It may be that your supervision was adequate but you were unable to stop the fault from happening anyway. Perhaps the child’s action was totally unpredictable.

Suppose that a child is playing with knitting needles on the school bus on the way home. If someone is injured at this stage, the school will not be found liable because its supervision had already ended by this time.

I teach karate. Can I be held liable for a student’s acts outside of class time?

In principle, your liability is limited to any damages a minor child causes to another person or property while under your supervision.

In some cases, your liability may extend beyond your classroom. If it can be proven that the unsupervised acts stemmed from poor education you provided the child, you can be held liable for the damages caused.

How can I free myself from liability?

To free yourself from liability, the law merely requires you to show proof that your conduct was compatible with that of a normal, prudent, and responsible custodian, supervisor, or educator.

Some elements may support your argument. Here are some of the most common:

• The injurious act occurred when the child was no longer under your supervision, unless it can be proven that the act resulted from poor education you gave to the child (see the above question about the karate teacher).

• You adequately supervised the child: You can free yourself from responsibility by proving that you were not at fault in your supervision of the child. You can also show that your supervision complied with the supervision policy of your establishment.
  
  
• The child’s act was unpredictable: Even though you took reasonable precautions, you could not have known the child’s intentions (e.g. a model student firing a slingshot at a teacher).
  
  
• The injurious act resulted from the risk inherent in an activity or sport: If you can prove that you properly instructed the children on how to play and you took the necessary safety precautions (e.g. protective equipment).
  

I teach physical education. Are there basic precautions that I can take when I organize sporting activities for my students or for other youth?

Whether it is during a physical education class, an extracurricular activity, or recess, children play sports and have a greater risk of injury.

As a teacher, you are responsible for choosing sports that are suitable to the children’s age and skill level. You should:

• Instruct the students on how to play the game;
  
• Supervise the students by enforcing the rules of the game and advising caution;
  
• Make sure that each student wears the necessary protective equipment.

If all of these precautions are taken, a teacher will have little chance of being blamed and forced to pay compensation for damages caused by a student.
For more information, consult the Infosheet entitled Sports, leisure activities, and civil liability  (http://www.educaloi.qc.ca/en/loi/other_infosheets/117/).

Should I adopt an attitude of zero tolerance towards the behaviour of children under my supervision?

No, not at all. A schoolyard is not an army reserve. The law asks that you not tolerate any dangerous conduct from a child under your supervision. If one warning is not enough, issue a second, or maybe even a third. Do what is necessary to ensure that the children respect the limits you have set.

My teenage daughter babysits for extra cash. If a child under her care injures another child, can my daughter be held liable for damages?

The law provides different rules for people who supervise children gratuitously or for reward (a small amount that cannot be considered a salary).

Unlike other caretakers, supervisors, or educators who are presumed to be at fault as soon as a child in their care causes damages, a person who is supervising a child gratuitously or for reward is not held liable unless it can be proven that she committed a fault.

Therefore, the custodian will only be found liable if it can be shown that she did not act with the necessary prudence or diligence, or that she was negligent in the performance of her duties.

I am a teacher and I found a letter in which a student says that he intends to attack the school with a gun. Do I have to report this to the police?

Yes. You must call the police as soon as you have reasons to believe that a student will bring a gun to school.

The question that you must ask yourself is “Is this person behaving in such a way as to compromise his safety or the safety of others by using a firearm”? If the answer is yes, you must call the police. Teachers and any professional in a management position at a school, college, university, childcare centre, or nursery have the same duty. As well, any teacher, professional, or other person working at a school, college, university, childcare centre, or nursery must immediately inform the police if they have reasonable grounds to believe that a firearm is on the premises. You can be accused of an offence for failing to inform the police...If found guilty, you are liable for a fine of $500 to $5,000.

You cannot be sued for reporting the situation to the police if you acted in “good faith”. “Good faith” in this context means that you believed what you reported, you acted reasonably and you didn’t inform the police just to create trouble for someone.