Instructor Training Course Instructor Liability Lesson Plan 1 Lesson Plan Cover Sheet Course Title Instructor Training Course Lesson Title Instructor Liability Unit Code Hours Two and a half (2.5) Prepared By and Date Completed Tim Melton Approved By Cheryl Greathouse Revised By Bob Sanderson, GPSTC Cheryl Greathouse, GPSTC Nancy Botts, GPSTC Melissa Pittman, GPSTC and Diana Lindner, GPSTC, Melissa Pittman, GPSTC Revised Date(s) December 2007, May 2008, March 2009, May 2011
Transcript
Instructor Training Course Instructor Liability Lesson Plan
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Lesson Plan Cover Sheet
Course Title
Instructor Training Course
Lesson Title
Instructor Liability
Unit Code
Hours
Two and a half (2.5)
Prepared By and Date Completed
Tim Melton
Approved By
Cheryl Greathouse
Revised By
Bob Sanderson, GPSTC Cheryl Greathouse, GPSTC Nancy Botts, GPSTC Melissa Pittman, GPSTC and Diana Lindner, GPSTC, Melissa Pittman, GPSTC
Revised Date(s)
December 2007, May 2008, March 2009, May 2011
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Instructional Method
X Discussion X Lecture X Practical Exercise
Terminal Performance Objectives Given a training topic, the public safety training instructor will apply strategies to address general liability and regulatory issues in the design, development, and delivery of a course of instruction, in accordance with current legal trends, and the Georgia Peace Officer Standards and Training Council’s (P.O.S.T.) Uniform Academy Regulations and P.O.S.T. Rules.
Enabling Objectives
a. Differentiate between a crime and a tort. b. Explain United States Code (USC) Title 42, Section 1983. c. Identify and differentiate the three levels of negligence. d. List the requirements to prevail in a tort action. e. Identify the four negligent causes of actions which form the basis for trainer
liability. f. Describe Equal Employment Opportunity Commission (EEOC) regulations as
related to instruction. g. List potential traps in liability. h. Explain the steps to reduce liability risk. i. Discuss regulatory guidelines for public safety training instructors.
Audio Visual aids (See PowerPoint file)
X Electronic Slide Show Presentation Audio Chalkboard
Flip Chart Poster Video
Other
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Handouts and other Reference Material
Course Evaluation Method (See Appendix C)
Performance Test X Written Test X Practical Exercise
Pre-course or additional reading assignments (if applicable, See Appendix D)
None
References (using APA Citation Style)
Aitchison, W. (1996). The rights of law enforcement officers; 3rd edition. Published by
the Labor Relations information system. Portland, Oregon
Fiedelholtz, Mark (1996). Eliminating the Liability of a Trainer. Pembroke Pines, FL:
Effective Communications, Inc.
Rose, Daniel J. (October, 1993). Protecting Yourself From Lawsuits. Portland, ME.
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Anderson v. City of Atlanta, 778 f. 2nd 678
City of Canton, Ohio v. Harris, 109 S. Ct. 1197 (1989)
Griggs v. Duke Power Co., 401 U.S. 424 (1971)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
Equipment/materials (describe type and amount)
One – Laptop Computer
One – Data Projector
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Topic: Instructor Liability The purpose of this lesson is to give the public safety training instructor strategies to address general liability and regulatory issues in the design, development, and delivery of a course of instruction. The material should be taught in accordance with current legal trends and the Georgia Peace Officer Standards and Training Council’s (P.O.S.T.) Uniform Academy Regulations and P.O.S.T. Rules. The lesson is primarily lecture driven so the most suitable environment to provide the training will be in an academic classroom. There is room for group discussions so grouping tables together will facilitate this. The material includes case cites and law briefs that explain liability. Therefore, the instructor for the program must be well versed in current civil law applications and how public safety training is effected by it.
Instructional Guide / Abstract
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Course Schedule
Time Session
05 minutes Introduction
15 minutes Liability: Crime vs. Tort
15 minutes USC Title 42, Section 1983
15 minutes Levels of Negligence
15 minutes Prevailing in a Tort Action
10 minutes Four Negligent Causes of Actions for Trainer Liability
15 minutes EEOC Regulations as Related to Instruction
20 minutes Liability Traps
15 minutes Reducing the Liability Risk
20 minutes Regulatory Guidelines for Public Safety Training Instructors
05 minutes Conclusion
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I. Introduction (5 minutes) Instructional Note: Display PowerPoint Slide #1 (Instructor Liability) (Liability in
Training) Instructional Note: Introduce self, if new to group
A. Opening statement The world of public safety training is a rewarding one. However, it is also steeped with responsibility. Your agent’s lives and lively hoods may rest heavy on the training they receive from your programs.
Instructional Note: Ask the following question; “Why do you want to be a trainer?”
For many of us the prime reason for getting involved in training is to effect, in a positive way, the job skills of your co-workers. This lesson will serve to give information as to how to conduct training in a manner that is safe and free from liability.
Given a training topic, the public safety training instructor will apply strategies to address general liability and regulatory issues in the design, development, and delivery of a course of instruction, in accordance with current legal trends, and the Georgia Peace Officer Standards and Training Council’s (P.O.S.T.) Uniform Academy Regulations and P.O.S.T. Rules.
Introduction
Instructor Training Course Instructor Liability Lesson Plan
a. Differentiate between a crime and a tort. b. Explain United States Code (USC) Title 42, Section 1983. c. Identify and differentiate the three levels of negligence. d. List the requirements to prevail in a tort action.
e. Identify the four negligent causes of actions which form the basis for trainer liability.
f. Describe Equal Employment Opportunity Commission
(EEOC) regulations as related to instruction. g. List potential traps in liability. h. Explain the steps to reduce liability risk. i. Discuss regulatory guidelines for public safety training
instructors. Instructional Note: Ask if there are any questions about the Performance Objectives. Instructional Note: Display PowerPoint Slide #5 (American Society)
C. Reasons for Learning
American society has become increasingly litigious in general wanting to place blame rather than accept responsibility. When you couple this with the more in depth attention given to incidents involving public safety officers, you begin to understand the liability threat faced by officers, supervisors, trainers, managers, and administrators. It is imperative that this group of professionals be able to recognize this threat, in order to take measures to minimize their risk.
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II. Body (140 minutes) Instructional Note: Display PowerPoint Slide #6 (Liability: Crime versus Torts)
A. Liability: Crimes versus Torts
Liability is defined as the legal responsibility for something, especially costs or damages. Legal responsibilities can come in the form of crimes and/or torts.
A crime is defined as an act committed or omitted in violation of a law forbidding or commanding it and for which punishment is imposed upon conviction; unlawful activity; or a serious offense, especially one in violation of morality.
In order for someone to be penalized for any criminal liability, the accuser must prove beyond a reasonable doubt that the accused did commit the act and did so willfully and with intent.
c. Penalties for criminal liability The penalties for criminal liability include jail time and/or fines.
2. History of Torts
Historically, all crimes were originally torts. An injured party sought his own remedy. The result was often feuding or fighting that cost much in lives and property. This system of private vengeance was gradually replaced with the concept of criminal law, in which the entire community is injured if one of its members is injured. The right to act against a wrongdoer was granted to the state as a
Body
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representative of the people. However, this concept did not entirely replace the right of private redress and a single act may be both a crime and a tort. Action brought against education or training programs are typically not criminal because there is no intent to harm, but rather based upon a legal doctrine called Torts.
A tort is defined as a private or civil wrong, other than a breach of contract, in which the action of one person causes injury to the person or property of another in violation of a legal duty imposed by law.
i. Burden of proof Proof through a preponderance of the evidence the defendant did commit the act.
ii. Penalties for Civil Liability
aa. Compensatory damages reimburse the plaintiff for actual losses from, for instance, an automobile accident or other circumstances found to be the responsibility of the defendant.
bb. Punitive damages, which are allowed in only
certain types of cases, are monetary awards designed to punish the defendant for unlawful behavior that is considered to be particularly egregious, and to deter such actions or behavior in the future.
In simple terms, a wrongful act for which damages can be sought by the injured party. The injured party or “plaintiff” initiates a law suit. The party that has been sued is the “defendant” or tort-feasor.
Instructor Training Course Instructor Liability Lesson Plan
Three categories of torts generally cover most tort actions brought against public safety officers and agencies.
i. Intentional torts
Intentional Torts occur when there is a voluntary intention on the part of a person to bring physical or mental harm upon another person.
Instructional Note: Give the following example of an intentional tort
In regards to training an example of an intentional tort may be when an instructor who places his student into a situation where the instructor is reasonably sure the student will sustain a significant injury.
ii. Negligent torts
Negligent Torts arise from the fact that our society imposes a duty upon individuals to conduct their affairs in a manner which will avoid subjecting others to an unreasonable risk of harm.
Instructional Note: Give the following example of a negligent tort An instructor may face a charge of negligence if he/she fails to supervise a high liability exercise which leads to an injury suffered by a student.
iii. Constitutional torts
Constitutional Torts arise out of guarantees afforded to us in the United States Constitution. The area of tort law that most involves the work performed by education and training programs and which provides fertile ground for lawsuits is that of negligence.
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Instructional Note: Give the following example of an constitutional tort
By placing a student into a situation that is both “cruel and unusual” or that is in “disregard of due process procedures” may lead to a charge of constitutional tort.
Instructional Note: Display PowerPoint Slide #12 (Title 42, USC Section 1983) B. Title 42, USC Section 1983
1. Definition
Federal Code 42 USC 1983 is defined as; Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
a. Under color of law indicates that the individual is operating in a position of authority.
b. Deprivation of rights, privileges or immunities; by virtue of
the above referenced authority, a government agent is subject to the provision of the Constitution. Any deprivation rising to this level may subject the agent to civil penalties.
c. Liable only for intentional torts or acts of Gross Negligence;
Evil motive or intent, or reckless or callous indifference. This is based on interpretive rulings by the U.S. Supreme Court.
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Instructional Note: Display PowerPoint Slide #14 (Levels of Negligence)
C. Levels of Negligence
Remember that negligence is defined as conduct that involves an unreasonable risk of causing danger or harm and arises from the fact that our society imposes a duty upon individuals to conduct their affairs in a manner which will avoid subjecting others to an unreasonable risk of harm. If an instructor’s conduct creates a danger recognizable as such by a “reasonable instructor” in like circumstances, the instructor can be held accountable to others injured as a result of the conduct. The conduct can be either an act or an omission (failure to act).
Instructional Note: Display PowerPoint Slide #15 (Levels of Negligence) (contd)
1. Simple Negligence
Simple negligence is failure to use that degree of care that an ordinary prudent person would use in like circumstances. In other words, it is an unreasonable act done by a reasonable person in the scope of his/her employment. For a trainer, it would be a “degree of care in training.”
Instructional Note: Display PowerPoint Slide #16 (Levels of Negligence) (contd)
2. Gross Negligence
Gross negligence is failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. It is more lacking of care than constituting simple negligence and amounts to indifference to present legal duty and to utter forgetfulness of legal obligations.
Instructional Note: Display PowerPoint Slide #17 (Levels of Negligence) (contd)
3. Willful Negligence
Willful negligence is an intentional act of unreasonable character in disregard of risk known to the actor or so obvious that the actor must be taken to have been aware of it and so great as to make it highly probable that harm would follow. It is usually accompanied by a conscious indifference (deliberate indifference).
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Instructional Note: Display PowerPoint Slide #18 (Requirements to Prevail)
D. Requirements to Prevail in a Tort Action
In order to prevail in a tort action, the plaintiff must show:
1. Duty
A legal duty requiring one to conduct themselves according to a certain standard must exist.
2. Deviate – Failure to Conform A failure to conform conduct to this standard must exist.
Instructional Note: Display PowerPoint Slide #19 (Requirements to Prevail) (contd) 3. Direct (Proximate) Cause
Proximate cause which is a sufficiently close link between the act of negligence and the harm suffered by another must exist.
4. Damage Results
Actual damage must be suffered by another.
As a trainer, you have a duty to train your students properly. Almost all training liability is based on negligence law. Failure to train officers/students properly, or at all, when a duty (special relationship) to do so exists, may cause the officer/student to rely on that poor training to his/her detriment or a third parties’ detriment.
Instructor Training Course Instructor Liability Lesson Plan
E. Causes of Action for Which Trainers May Be Found Liable
Generally a supervisor or trainer may not be held liable for acts of trainees/employees unless he directs, participates in, approves the wrongful conduct, or that official’s negligence otherwise caused or contributed to the misconduct. The types of actions which may arise against trainers include: 1. Negligent Training
This may manifest itself two different ways; either failure to train at all, which courts presume to be gross negligence, or training which is conducted improperly. Training which does exist may be either poorly designed or poorly executed.
Exercise) Sager v. City of Woodlawn Park, 543 F. Supp. 282. Have each table group read through the case cite below, answer the questions, appoint a spokesperson and have them report ideas. The students will have 15 minutes to complete this exercise.
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Instructional Note: Conduct Practical Exercise (see appendix C)
PRACTICAL EXERCISE
Please read the facts of the case and note the issue(s) to be considered. After all have finished reading the facts of the case, we will discuss the issue(s) presented.
FACTS: A police officer with the City of Woodlawn Park (Colorado) accidentally killed a person he was arresting at the scene of a burglary when the shotgun he was holding to the suspect’s head accidentally discharged. The officer was trying to hold the shotgun in one hand and handcuff the arrestee with the other hand while the suspect was spread eagle on the ground. This technique of handling dangerous prisoners was shown in a training film seen by the officer while in rookie school. The City of Woodlawn Park had sent its officer to the regional academy in Colorado Springs for basic certification training. When the administrator of the estate of the deceased brought a lawsuit against the officer, Chief of Police and the city, the city in turn moved to include the City of Colorado Springs. At the trial, the training officer in charge of the training academy testified that the film in question was supposed to illustrate how NOT to handcuff a prisoner, but apparently someone had forgotten to tell the class it illustrated improper technique. The trial court heard an argument that the death was not “caused” by the negligent teaching. ISSUES: Was the “chain of causation” sufficiently clear to tie the information taught to the death which eventually occurred? Why or why not? Was the death a “reasonably foreseeable” result of the mistaken teaching? Why or why not?
This involves the failure to control dangerous equipment or devices which are entrusted to trainees or subordinates. When you place weapons, vehicles, explosives and the like into the hands of trainees, you monitor closely their usage. If you know (or should have known) a trainee cannot handle the equipment, or at some point becomes unsuitable to possess it, you may be liable for any injury which results.
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3. Negligent Supervision
This involves the failure on your part to coordinate, control or direct
trainee conduct which may cause an injury. If you tolerate unacceptable behavior or do not set limits on conduct, you may be liable for the consequences.
4. Negligent Retention
This involves a failure on your part to take action when you have (or should have) determined a trainee is unsuitable to continue, or the magnitude of that trainee’s acts demonstrates they are a foreseeable danger. Being a nice guy and overlooking unacceptable performance can come back to haunt you. Trainers may not have the power to hire and fire, but they do have the power to pass or fail and make recommendations. Be sure to document failures and notify superiors. If the failure is overlooked by higher authority, it won’t be your fault.
Instructional Note: Display PowerPoint Slide #22 (EEOC Title VII) F. EEOC Title VII - Avoiding Discrimination
The Equal Employment Opportunity Commission (EEOC) makes it unlawful for an employer to…
fail or refuse to hire or to discharge any individual or otherwise discriminate. . . with respect to compensation, terms, conditions, privilege. . . of employment because of . . . race, color, religion, sex, or national origin; or limit, segregate, or classify the employees and/or applicants for employment in any way which would deprive. . . employment opportunities or. . . adversely affect their status. . . because of race, color, religion, sex, or national origin.
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Instructional Note: Display PowerPoint Slide #23 (EEOC Title VII) (contd)
1. Disparate Treatment
The Civil Rights statutes provide for new statutory rights to remedy employment discrimination - Title 42 U.S.C. Section 2000e. Trainers must be aware of these rights in order to avoid discrimination charges and to assure that their training does not discriminate or create a hostile or offensive environment giving rise to claims of sexual harassment or the like. All must have an equal opportunity to successfully complete the training, and the training must be directly related to the job criteria. Generally two different types of claims can arise - disparate treatment and disparate impact. Disparate Treatment involves the kind of treatment a trainee receives from trainers which may differ from the treatment given to other trainees and the only basis for the different treatment is the person’s race, color, religion, sex or national origin. It also means that trainers must be careful to avoid sexist remarks, racial slurs, religious innuendos, etc., plus not tolerate others doing it, as indicative of a discriminatory mind set. Disability (ADA) and Age (ADEA) discrimination laws are separate from Title 7, but have very similar kinds of prohibitions. If issues of disparate treatment arise, the employer (trainer) could be put to the test to articulate some legitimate nondiscriminatory reason for the trainee’s treatment or failure, i.e. poor attendance, unsatisfactory performance, disciplinary problems, etc., all of which needs to be documented. If poor performance is the issue, then the employer (trainer) may have to show that the training requirement(s) are legitimately tied to job criteria which are a business necessity.
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Instructional Note: Display PowerPoint Slide #24 (EEOC Title VII) (contd)
2. Disparate Impact
Disparate Impact involves the use of training practices which are facially neutral in their treatment of different groups but will impact more severely one protected class and cannot be justified by business necessity. It might be used to challenge the way tests are administered.
It is the policy of Title 7 and other acts to eliminate artificial, arbitrary and unnecessary barriers to employment and assure that people are hired, promoted, trained, etc. based upon their qualifications rather than unconstitutional factors. If challenged, you may have to show that the training requirement(s) are job related and tied to a business necessity. With “disabled” trainees under the ADA, you would have to establish the “essential functions” of the job, and perhaps reasonably accommodate the trainee.
There are some liability traps that can be easily avoided to help lower your risk as an instructor such as:
1. Dating students 2. Partying with the class 3. Falsifying records 4. Teaching outside of the approved lesson plan 5. Teaching incorrect information/techniques 6. Failing to adhere to established standards 7. Engaging in discriminatory testing procedures 8. Making offensive remarks 9. Making biased selection of trainees
Instructor Training Course Instructor Liability Lesson Plan
1. Utilize written procedures for classroom activities, exercises,
testing, etc. where possible. This will aid in maintaining consistency between course offerings. Furthermore, it will benefit another instructor by giving them written instructions on how the course should be managed.
2. Provide these written procedures to all students. This will ensure
that each student will be clear on what they are required to accomplish to gain success and it will reduce the he-said-she-said quotient.
3. Always follow an approved lesson plan. Tangents are potential
torpedoes to a program. Avoid editorializing subject matter; feelings and opinions are innate in each of us but if used during the presentation of a lesson to students, it could undermine the effectiveness and correctness of the program.
4. Teach and follow safe practices in all class activities. If you are
asking a student to wear a helmet, you should too! Safety should always be a modeled behavior.
5. Ensure class sizes are reasonable and instructor/student ratios are
not exceeded. Many standardized and/or performance based classes have pre-set student to instructor ratios. These ratios are generally established after careful study. If you make the decision to ignore those minimums then you place yourself squarely responsible in the event of a harmful incident where poor supervision was the culprit.
9. Keep activity areas clear of debris, trash, etc. avoid a sullied work environment by removing all trip hazards, refuse, extra equipment or props. This will improve the usability of the space; and keep the students from becoming distracted.
10. Use all available safety devices. By reducing just one safety
precaution, you can dramatically increase the likelihood of an accident. Check and recheck all safety equipment, skipping no steps.
Instructional Note: Tell the students the story below. (Officer shoots himself in class)
During firearms instruction, there are several safety variables that must be observed at all times. Some of these variables include, but not limited to; muzzle direction, finger off the trigger, check and recheck for safe, secure weapon. An officer was once performing a safety briefing in front of a group of school children. During his presentation, he began to speak about the fact that guns were highly dangerous and that no child should “mess with them”. The officer then un-holstered his semi-automatic handgun, worked the action-leaving the slide locked to the rear. At this point he showed the weapon to another adult and asked “this is an empty weapon?” The adult confirmed that there was no bullet actually in the chamber. However, they missed the fact that the weapon had a loaded magazine inserted. Feeling confident that the weapon was UNLOADED, the officer released the slide pointed the muzzle toward the ground and depressed the trigger. The weapon had in fact, chambered a round of ammunition - which was fired into his leg. This incident shocked the children and severely injured the officer.
Instructional Note: Using the APC (ask, pause, call) Method, ask the following
questions:
Question: How could this incident been avoided?
Possible answers: The weapon shouldn’t have been un-holstered and proper safety check should been administered. If the re-check would have been done correctly, the magazine would have been detected. Use of a training weapon could have worked.
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Question: Who is liable?
Possible answer: The officer is liable for the negligent discharge and any other destruction that resulted. The second adult may have been liable, if they had proper training in checking a weapon for safety. The agency may also be, if the condoned of the weapon being used in such a manner when other resources were available.
11. Remove broken equipment or machinery. Use of faulty equipment
that you know is dangerous can sets negligence into motion. 12. Ensure trainers are qualified. Make sure that all instructors are in
good standing with their certifying agency. This could be done by contacting Georgia Peace Officer Standards and Training Council or Georgia Firefighter Standards and Training Council.
13. Ensure records are accurate. Generate a check sheet that will be
placed in each training file that will serve to remind you what items should be included.
14. Keep course materials up-to-date. There should be annual checks
of the training material. Only use resources that are less than 3 years old. Unless it is a matter of case law or statutory law, then they should be no older than one year.
I. Regulatory Guidelines for Public Safety Training Instructors
There are numerous laws and legal statutes that apply to trainers and the curriculum they develop. In addition to the laws we are also bound by the guidelines that are established by the public safety oversight authorities. For the purpose of this class we will be discussing the two that apply. 1. Georgia Peace Officer Standard and Training Council (GPOST)
Individuals operating in the capacity of law enforcement fall under the direction of Georgia P.O.S.T. They have established rules and regulations that govern the administration of mandate, in-service, and advanced/specialized programs. Each instructor should visit www.gapost.org and download a current copy of the UNIFORM ACADEMY REGULATIONS and read through the rules that apply to training.
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2. Georgia Firefighter Standards and Training Council (GFSTC)
Fire service personnel and their training agents operate under the controls of GFSTC. GFSTC develops policies and regulations that are in line with National Fire Prevention Association standards. A fire service instructor should be familiar with all the current NFPA and GFSTC regulations, however; NFPA 1041 enumerates specific guidelines for the administration of training. You can locate NFPA 1041 and other related information at www.nfpa.org.
During this block of instruction, we have discussed the difference between crimes and torts, looked at 42 USC 1983, and identified and differentiated among the three levels of negligence. Next, we learned the requirements that are needed to prevail in a tort action.
We’ve determined what four causes of action must exist to create trainer liability, discussed EEOC regulations related to instruction, and identified strategies to avoid negligent conduct. Finally, we discussed unethical behavior found in the form of liability traps and discussed regulatory agency guidelines that apply to instructors.
B. Final Questions Instructional Note: Ask if there are any final questions.
C. Closing Statements There is much more that can be discussed about training liability, certainly more than we can cover in this allotment of time. I encourage you to do your own research and expand on what you have learned today. Managing the risk of liability requires that the instructor always keep in mind the possibility of being sued. Nothing can eliminate that risk. Documentation and meeting mandated standards are two of the most important factors in managing the risk of liability. If you strive to be the best instructor you can be and show an honest concern for the welfare of your students, you can go a long way toward managing the risk of liability. Remember too, the idea of an ounce of prevention going a long way.
