M E M O R A N D U M
TO:
FROM:
DATE:
RE: Cole Gershwin- Immunity for Negligence on Recreational Property
_________________________________________________________
I. STATEMENT OF FACTS
Our Client, Mr. Cole Gershwin, is considering suit against the Chicago School District for injuries sustained as a result of tripping in a pothole. Gershwin, a teacher at Washington Elementary School, alleges that on October 10, 2000 at 12:20 pm, he was walking from the school to the teacher’s parking lot, and tripped in a pothole and fell.
The walkway where Gershwin fell is adjacent to a parking lot that was converted from a portion of the playground area. The walkway is used by teachers to travel to and from the parking lot. The walkway is marked with yellow stripes and is bordered on the southern edge by orange construction cones that the school is going to replace with additional fencing. There is a sign on the fence separating the parking lot from the walkway that reads: “Walkway for Teachers Only.” Students occasionally use the walkway as a “safe” zone for games of tag.
II. QUESTION PRESENTED
Whether school property, classified as recreational and cursorily used by students during their recreation, immune from civil action under the Illinois Tort Immunity Act 3-106; when the school has the area sectioned off implying that it does not intend for the property to be used recreationally.
III. CONCLUSION
No. The elements necessary to make the property recreational are not satisfied in this situation. The school district shows no intended use of the property for recreational purposes, nor does it show permitted use of the property for recreational purposes. Although the walkway is occasionally used by children for games of tag, this is incidental usage of the property, and thus § 3-106 is inapplicable. Additionally, the primary purpose of the walkway is to facilitate travel to and from the parking lot, making the walkway nonrecreational in character.
IV. DISCUSSION
Immunity from liability is determined by examining the character of the property in question. In order to establish immunity, the school board must show intent for the property to be used for recreation, or that the property is permitted to be used for recreational purposes, where that use is not incidental. Factors that weigh on the court’s decision to identify property as recreational include the overall usefulness of the walkway to facilitate access to the recreational facility, the primary purpose of the walkway, and viewing the property in question as a “unified whole.
(Frugis v. Bracigliano, 2003). The judges in this case needed to determine of Elmwood Park Board of Education was at all responsible for this act due to lack of supervision of Bracigliano (Frugis v. Bracigliano, 2003). The facts of the case explain that Bracigliano obstructed views into his office as soon as he became the principal in 1982, which was against a New Jersey law that required every room used by school staff to have a view into it (Frugis v. Bracigliano, 2003). During his tenure as principal a state inspector ordered that the covering be removed, which it was, but only temporarily (Frugis v. Bracigliano, 2003). The School Board was aware that the covering was ordered to be removed by the state inspector, but they never verified that it had in fact been removed (Frugis v. Bracigliano, 2003). Staff members were also aware that students frequently visited Bracigliano’s office, the door was locked, and pictures were taken when the students were in there (Frugis v. Bracigliano, 2003). Several staff members also witnessed Bracigliano doing inappropriate things to students, but they were unaware of the procedure to report these acts and, therefore, the acts went unreported to Bracigliano’s superiors (Frugis v.
The minority countered this argument when the school board said, “it is our duty, our moral obligation, to protect the children in our school from this moral danger as surely as from physical and medical dangers” (qtd. in Board of
It has been said for years that any case of educational malpractice was doomed from the start. Because of this, it was a huge surprise when the Iowa Supreme Court denied the defendant, Cedar Rapids Community School District’s motion for summary judgement. This was a case where a student sued for negligent misrepresentation by a school guidance counselor. One reason why the court may have denied the motion was because it was trying to protect a category of people who were considered especially vulnerable, the student-athlete.
Massachusetts General Law Chapter 231 Section 85Q says that a landowner may be liable for physical harm suffered by child trespassers on their land, only if all five criteria are met. Condition ‘A’ states, “The place where the condition exists is one upon which the landowner knows or has reason to know that children are likely to trespass.” Mass. Gen. Laws ch. 231 § 85Q. Condition ‘B’ discusses whether or not the landowner knows or has reason to know that an unreasonable risk of death or serious bodily harm will result. Id. Condition ‘C’ focuses on whether or not the child due to their age is not aware of the risk that is present. Id. Condition ‘D’ says compares the burden of eliminating the condition to the level of risk posed to the children. Id. Finally, Condition ‘E’ states that the landowner fails to use reasonable care to eliminate or protect the children. Id. Richard’s case fails on condition ‘A’ as C.D. Management had no reason to foresee that children would trespass in their basement laundry room, as there were only laundry machines in the basement and C.D. Management had no reason to believe that a child would trespass there. C.D. Management could reasonably foresee that someone wanting to do their laundry would trespass in their basement, but Richard Melville was not in their basement to do his laundry. The Soule case created common law about this issue, “There is a
Whether the rules created by the New York School Board, as established by the DOE Holiday Display Memo, are in violation of the Free Exercise and Establishment clauses of the first amendment.
The First Amendment, usually equated with freedom of speech, affords five protections: Establishment Clause, Free exercise of religion, Freedom of speech, Freedom of press, and Freedom to peaceable assemble. Students (and student groups) in public colleges and universities enjoy full protection under the First Amendment; however, this right depends greatly on the context in which a student might raise a free speech claim. Once an institution creates a limited public forum for a student or group, administration cannot deny recognition to particular student or groups based on viewpoints. Given the great freedom students are afforded, the freedom is not absolute. The courts have allowed administrators to place reasonable restrictions on location, time, and manner of students and groups. In Tinker v. Des Moines, the court made it clear that, students do not “… shed their constitutional rights when they enter the schoolhouse door." To strengthen the importance of free speech on campus the court said, in Shelton v. Tucker “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American Schools.” These rights allow students to be able to take courses in a wide variety of subject matter, which may include topics often considered controversial. Moreover, student must have the ability to explore and discuss those topics without fear censorship or retaliation.
g the Good Guys: School Zones and the Second Amendment” the author Grant Arnold compare and Heller case, District of Columbia v. Heller, 554 U.S. 570, 575 (2008), the US supreme court held, for the first time, that the US Constitution, under the Second Amendment, right to keep and bear arms was protected. Because of the media sensationalizing the school shootings, many looked at disarming society as a means to eliminate school shootings. Arnold further goes on to analyze the Second Amendment as it relates to the Gun Free Zones established by many state laws. "The United States Code (U.S.C.) is 'the codification by subject matter of the general and permanent laws of the United States.' Title 18 deals with crimes and criminal procedure. Under Part I (Crimes), chapter 44 deals with firearms.
The movie “A Civil Action” released on January 8, 1999 provides viewers with an extraordinary story of the nightmare that occurred in Woburn Massachusetts in the late 1970’s. The people of this small town at the time had no idea what was going on until there were various cases of Leukemia in small children that ultimately resulted in the early passing of them. The people eventually had gone to find out that the drinking water in this small town was contaminated and there were many women that stepped in to get answers. This movie is a tremendously jaw dropping, eye opening account of a heartbreaking true story incident. There are various elements of negligence in this movie including, duty, legal cause, proximate cause and damages.
Spengler, John O. et al. Liability Concerns and Shared Use of School Recreational Facilities in Underserved Communities, 41 Am. J. Prev. med. 415 (2011), available at http://www.ajpmonline.org/article/S0749-3797(11)00448-X/abstract.
Through using case laws, the First Amendment, and previous cases, Justice Abe Fortas explains the reasoning behind why the principal was not permissible. In the first two paragraphs, Fortas provides a brief summary stating how the policy banning armbands go against the First Amendment. In the following paragraph, Fortas says, “Only a few of the 18,00 students in the school system wore the black armbands.” When introducing his first argument, he supports this fact explaining how “the work of the schools or any class was [not] disrupted.” As for the fourth paragraph, Justice Fortas provides a counter argument with what the District Court said. The District Court concluded the school authorities were reasonable since it was based upon their fear o...
Purpose - To prove negligence of both General Palmer Railroad and engineer Lee Thompson in regards to the accident that killed John Goodson. To prove that current railroad regulations and procedures are not adequate to prevent grade crossing accidents.
Dazey, Josh. “Campus puts students at undue risk: while restricting “basic natural rights”. Ifeminists. Feb 12, 2002. http://www.ifeminists.net/introduction/editorials/2002/0212b.html
This essay focuses on intentional tort, which includes trespass to person consisting of battery, assault and false imprisonment, which is actionable per se. It also examines protection from harassment act. The essay commences with a brief description of assault, battery and false imprisonment. It goes further advising the concerned parties on the right to claim they have in tort law and the development of the law over the years, with the aid of case law, principles and statutes.
Follow up question: We recently read about many court cases, the one that intrigued me the most was Light v. Parkway, a case that saw the courts rule in favor of a more restrictive setting due to safety issues that arose in the classroom (Light v. Parkway, 1994). Would you say that this court cases and laws of this nature have played a significant role in how the district looks at least restrictive environment?
The superintendent and principal are stymied in their efforts to reach a compromise as Mrs. Durnitz refuses to change her position that the policy must be followed to the letter. She appealed to the teachers’ association for support when it appeared that the administration and board might not uphold her position. The local newspap...