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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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My wife is a credentialed teacher in a Private California preschool,

Resolved Question:

My wife is a credentialed teacher in a Private California preschool, working with children 2 years old and up. A child broke her leg there and it came out that her employer, the preschool operator, does not have liability insurance.
My questions are: 1. will my wife be liable at all ?She was present when this child broke her leg accidently, on playground equipment, She did not know there was no insurance at the time of the accident.
2. If she has no liability for that accident is she free from liability going forward if the operator still does not get insurance because she knows that there is no insurance or is she now liable along with the operator?
3.How much experience do you have and how sure are you of your answer?
Thanks, Bruce
Submitted: 9 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 9 months ago.

Bruce,

Good afternoon and thank you for entrusting me to assist you. My name is XXXXX XXXXX X will do everything I can to answer your question.

In order for your wife to be personally liable, there need to be an applicable theory of liability against her. That sounds painfully obvious, but many non-lawyers wrongfully assume that merely because an injury happened on someone's "watch" that they are somehow responsible for the injured party's damages in court. Not the case at all.

The most likely theory of liability against a teacher for the injuries a child sustains at school is a basic theory of negligence. As a general matter, a cause of action for negligence arises where an individual fails to exercise the care and diligence that an ordinarily prudent person would exercise under similar conditions.

Whether an individual is guilty of negligence is a "question of fact," meaning it must be decided based on the unique circumstances of each case. In the context of "schoolyard liability," there have been cases in which a finding of "negligence" was based on a failure to adequately supervise. In these cases, however, the lapse in supervision was substantial, typically involving a teacher or school employee who stepped away for a long period of time while they were supposed to be supervising children, or who committed some other egregious act amounting to a breach of their duties.

The reality is that jurors are NOT eager to find teachers personally liable for schoolyard injuries and saddle then with thousands of dollars in judgment debt. Attorneys know this, too, and so even when there is a viable theory for liability against a teacher, the lawyer often will not pursue it in the interest of sound litigation strategy (if the jury feels sorry for a defendant, the award is likely to be much smaller).

Whether or not your wife believed there was insurance or now knows there is not insurance is irrelevant to liability, typically speaking.

To summarize here, teachers will only be personal liable for schoolyard injuries if there is an applicable legal theory through which liability can attach. The most common theory is a basic theory of negligence, but that requires showing a substantial breach of the duty of care. It does not follow that simply because an accident happened on the teacher's watch that they are going to be personally liable. To the contrary, history has shown that the teacher must be rather careless, either leaving the premises while on duty or by committing some other egregious lapse in judgment, in order to be liable. As a side note, jurors are not eager to hold teachers responsible and for reasons of strategy, teachers are often not even named in these lawsuits even if there is a viable theory for liability against them.

My legal practice consists of employment law and personal injury cases, so I am quite comfortable with my knowledge of the law as it pertains to your question, which relates to both of these areas.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes and kindest regards.

Customer: replied 9 months ago.


Thanks for your answer.


I needed little further clairification. The accident happened last week, today my wife found out there is no insurance, She and I both think her boss is unprofessional for being in this situation we think the school should have insurance.


But going forward, as long as she is not negliagent, can she be held liable for any future accidents ? It feels like maybe by working at the place ( it is state licensed) if the place is uninsured she is in a conspiricy of some sort if she does not report the place to the state. Does she have an obligation to report the school?


Thank you.


 

Expert:  Patrick, Esq. replied 9 months ago.
Bruce,

Thank you for your reply. There is no law which requires preschools to carry liability insurance. Moreover, an employee would not be held liable as a co-conspirator even in the case that there was such requirement and the employee was aware of the absence of insurance. I wouldn't worry about this possibility at all.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Expert:  Patrick, Esq. replied 9 months ago.
Bruce,

I should note one further thing, which is that if a pre-school does not carry liability insurance, they must obtain written acknowledgements from the parents of children enrolled in the program demonstrating awareness of the lack of insurance.

Even if your wife's pre-school was non-compliant with this policy, that would not be a basis to hold your wife personally liable in the absence of a theory such as negligence to establish personal liability. There is no "co-conspirator" liability.

I hope this helps clarify. Please let me know if I can be of any further assistance.
Patrick, Esq., Lawyer
Satisfied Customers: 6744
Experience: Significant experience in all areas of employment law.
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