Posted on: 3/22/2012
William L. Yocum, Cary Miller
View Latest Articles
Introduction
When a lawyer commits
malpractice, the injured party sues the lawyer. When a doctor commits
malpractice, the injured party sues the doctor. But what if a law school
or a medical school commits malpractice in training one of its students?
Can it be sued for malpractice? In the vast majority of jurisdictions,
the answer is "no," but there are narrow exceptions and notable
distinctions to this rule.
In this article we will
discuss both the general rule of and the narrow exceptions to what we
hereinafter refer to as "the educational malpractice doctrine."
What Is an
"Educational Malpractice" Claim?
Educational malpractice
claims tend to fall into one of three general categories: (1) a student
or a claimant injured by the student alleges that the school negligently failed
to provide the student with adequate skills; (2) the student or the claimant
alleges that the school negligently diagnosed or failed to diagnose the student's
learning or mental disabilities; or (3) the student or claimant alleges that
the school negligently supervised the student's training. Dallas
Airmotive, Inc. v. FlightSafety International, Inc., 277 S.W.3d 696, 699
(Mo. App. W.D. 2008), citing, Moore v. Vanderloo, 386 N.W.2d 108,
113 (Iowa 1986). While a student is usually the person asserting the
claim, third parties have sometimes attempted to assert educational malpractice
claims by contending that they were injured by the school's negligent teaching
of the student. Bunker v. Association of Missouri Electric
Cooperatives, 839 S.W.2d 608 (Mo. App. W.D. 1992); Dallas Airmotive,
supra, at 699; Moss Rehabilitation v. White, 692 A.2d 902, 905
(Del.1997).
The essence of an
educational malpractice claim calls into question the quality or the
effectiveness of instruction or training given by an academic or trade
institution. If the claim requires "an analysis of the quality of
education received and in making that analysis the fact finder must consider
principles of duty, standards of care, and the reasonableness of the
defendant's conduct," then the claim is one of educational
malpractice. Christensen v. S. Normal Schools, 790 So.2d 252, 255
(Ala. 2001). If the duty alleged to have been breached is the duty to
educate effectively, the claim is one of educational malpractice.
Vogel v. Maimonides Academy of W. Conn., Inc., 754 A.2d 824, 828 (Conn.
App. 2000). A claim that educational services provided were inadequate,
substandard, or ineffective constitutes a claim of educational malpractice.
Lawrence v. Lorain County Community College, 127 Ohio App.3d 546,
713 N.E.2d 478, 480 (1998); Alsides v. Brown Institute, Ltd., 592 N.W.2d
468, 473 (Minn. 1999); Dallas Airmotive, supra, 277 S.W.3d at
700. Where the court is asked to evaluate the course of instruction or
the soundness of the method of teaching that has been adopted by an educational
institution, the claim is one of educational malpractice. Andre v.
Pace Univ., 170 Misc.2d 893, 655 N.Y.S.2d 777, 779 (N.Y.App.Div.1996).
The General Rule
The legal theory of
educational malpractice has been consistently and repeatedly rejected as a
cause of action by an overwhelming majority of jurisdictions across the
country. Specifically, as a general rule a party may not allege claims
against an educational facility for damages arising out its failure to properly
educate or train a student. This extends to claims alleging that a school
was negligent in its choice of curriculum or had a duty to provide its student
with a higher quality education. None have been held to be viable causes
of action. See, Peter W. v. San Francisco Unified Sch. Dist.,
131 Cal. Rptr. 854 (Cal. Ct. App. 1976); Tubell v. Dade County Public
Schools, 419 So.2d 388 (Fla. Dist. Ct. App. 1982); Brantley v. District
of Columbia, 640 A.2d 181 (D.C. 1994); Finstad v. Washburn Univ. of
Topeka, 845 P.2d 685 (Kan. 1993); Doe v. Town of Framingham, 965 F.
Supp 226 (D. Mass. 1997); Moss Rehab v. White, 692 A.2d 902 (Del. 1997);
Moore v. Vanderloo, 386 N.W.2d 108 (Iowa 1986); Swidryk v. Saint
Michael's Med. Ctr., 493 A.2d 641 (N.J. Super. App. Ct. 1985); Ross v.
Creighton Univ., 957 F.2d 410 (7th Cir. 1992); Rich v. Kentucky Country
Day, Inc., 793 S.W.2d 832 (Ken. App. 1990); Wickstrom v. North Idaho College,
725 P.2d 155 (Idaho 1986); Blane v. Alabama Commercial Coll., Inc., 585
So.2d 866 (Ala. 1991); Donohue v. Copiague Union Free Sch. Dist., 391
N.E.2d 1352 (N.Y. App. 1979); D.S.W. v. Fairbanks North Star Borogough Sch.
Dist., 628 P.2d 554 (Alaska 1981); Doe v. Board of Education of
Montgomery County, 453 A.2d 814 (Md. 1982); Alsides v. Brown Institute,
Ltd., 592 N.W.2d 468 (Minn. 1999); Miller v. Loyola Univ. of New Orleans,
829 So.2d 1057 (La. Ct. App. 2002); Page v. Klein Tools, Inc., 610
N.W.2d 900 (Mich. 2000); Gupta v. New Britain Gen. Hosp., 687 A.2d 111
(Conn. 1996); Lawrence v. Lorain County Cmty. Coll., 713 N.E.2d 478
(Ohio Ct. App. 1998); Bittle v. Oklahoma City Univ., 6 P.3d 509 (Okla.
Ct. App. 2000); Cavaliere v. Duff's Business Institute, 605 A.2d 397
(Pa. Super. Ct. 1992); Denver Parents Ass'n. v. Denver Bd. of Educ., 10
P.3d 662 (Colo. Ct. App. 2000) (citing, CenCor, Inc. v. Tolman, 868 P.2d
396 (Colo. 1994)); Dallas Airmotive, Inc. v. FlightSafety International,
Inc., 277 S.W.3d 696 (Mo. App. W.D. 2008).
Strictly speaking, an
educational malpractice claim sounds in tort. The basic legal
relationship between a student and his or her school is, however, contractual
in nature. Zumbrun v. University of Southern California, 25
Cal.App.3d 1, 10, 101 Cal.Rptr. 499, 504 (1972); See also, Carr v.
St. John's University, 17 A.D.2d 632, 633, 231 N.Y.S.2d 410, 413 (1962); University
of Miami v. Militana, 184 So.2d 701, 703-704 (Fla.App.1966); Greene v.
Howard University, 271 F. Supp. 609, 613 (D.D.C.1967). Recognizing
this, student-claimants have attempted to repackage educational malpractice
claims as breach of contract claims which attack the quality of their
education. Despite the repackaging, these claims have been treated much
like the educational malpractice claims.
[T]he policy concerns
that preclude a cause of action for educational malpractice apply with equal
force to bar a breach of contract claim attacking the general quality of an
education. . . . Where the essence of the complaint is that the
school breached its agreement by failing to provide an effective education, the
court is again asked to evaluate the course of instruction . . . [and] is
similarly called upon to review the soundness of the method of teaching that
has been adopted by an educational institution.
Ross v. Creighton, supra, at 416, citing, Paladino v.
Adelphi University, 89 A.D.2d 85, 89-90, 454 N.Y.S.2d 868, 872
(1982). See also, Alsides, supra, 592 N.W.2d at 473; Wickstrom,
supra, 725 P.2d at 157 n. 1; Hunter v. Board of Education, 439
A.2d 582, 586 n. 5 (Md. App. 1982); Torres v. Little Flower Children's
Services, 474 N.E.2d 223, 227 (N.Y. Ct. App. 1984), cert. denied,
474 U.S. 864, 88 L.Ed.2d 150, 106 S. Ct. 181 (1985).
Four principal grounds
counsel against recognizing educational malpractice claims:
1. the lack of a
satisfactory standard of care by which to evaluate an educator;
2. the inherent
uncertainties about causation and the nature of damages in light of such
intervening factors as a student's attitude, motivation, temperament, past
experience, and home environment;
3. the potential
for a flood of litigation against schools; and
4. the possibility
that such claims will "embroil the courts into overseeing the day-to-day
operations of schools."
Page v. Klein Tools,
Inc., 610 N.W.2d 900, 903
(Mich. 2000) (citing, Alsides v. Brown Inst., Ltd., 592 N.W.2d
468, 472 (Minn. 1999)).
An educational
malpractice claim generally requires a review of the instructional materials
and teaching method employed. Alsides, 592 N.W.2d at 472. As
such, a typical educational malpractice claim involves "a comprehensive
review of a myriad of educational . . . factors, as well as administrative
policies that enter into the consideration of whether the method of instruction
and choice of [teaching aids] was appropriate, or preferable." Id.
at 472. The courts "have refused to become the 'overseers of both
the day-to-day operation of [the] educational process as well as the
formulation of its governing policies.'" Id. Thus, they
have found a lack of duty and held the claim of educational malpractice to be
non-cognizable. Id.The most recent ruling on this subject was in Dallas
Airmotive v. FlightSafety, 277 S.W.3d 696 (Mo. App. W.D. 2008). Dallas
Airmotive arose out of an airplane crash that occurred after a component
part of the left engine failed during flight. The pilot deactivated the
left engine and, thereafter, lost control of the airplane. The aircraft
crashed, killing the pilot and all four passengers.
The underlying
plaintiffs, all of whom were surviving family members of the occupants, filed
wrongful death actions against various defendants including Dallas Airmotive,
Inc., the provider of aircraft maintenance, and FlightSafety, the flight school
that trained the pilot to fly the airplane. In their claims against
FlightSafety, the plaintiffs alleged that FlightSafety was negligent in its
training of the pilot in several respects, including: (i) failing to
instruct the pilot to operate the airplane with the highest degree of care;
(ii) failing to instruct the pilot to perform an appropriate pre-flight
inspection; (iii) failing to instruct the pilot in the operation of the
aircraft; and (iv) failing to instruct the pilot how to operate, control and
land the aircraft as a result of the situation which arose during flight.
The plaintiffs also challenged FlightSafety's instruction of the pilot in the
form of a claim for breach of express and implied warranty, including that
FlightSafety's instruction course did not comply with applicable standards and
that FlightSafety did not adequately train the pilot.
Dallas Airmotive settled
with the plaintiffs in exchange for an assignment of the plaintiffs' causes of
action against FlightSafety. Thereafter, Dallas Airmotive filed a
cross-claim for contribution against FlightSafety, incorporating by reference
the plaintiffs' negligence and breach of warranty claims. FlightSafety
moved for summary judgment on the cross-claims arguing, inter alia, that
the negligence and breach of warranty claims were premised on the theory of
educational malpractice, which is not recognized as a cause of action.
The trial court sustained FlightSafety's motion and Dallas Airmotive appealed.
In upholding the summary
judgment, the Missouri Court of Appeals for the Western District rejected
Dallas Airmotive's argument that it did not allege educational malpractice
claims but simply "very precise negligence claims" based on a failure
"of FlightSafety to alert and warn . . . of the known dangers of shutting
down an engine in flight without the ability to properly feather the
propeller." Dallas Airmotive, 277 S.W.3d at 700.
Dallas Airmotive claims
FlightSafety's method of instruction, the simulator, is unrealistic and
inadequate. It alleges that FlightSafety failed to teach the pilot that
which he needed to know in the situation leading to the crash. Dallas
Airmotive's emphasis on the fact that FlightSafety was aware of the
deficiencies in its training program does not change the nature of its
complaint. Dallas Airmotive's claims "encompass the traditional
aspects of education," and thus attack the quality of the instruction.
* * *
Dallas Airmotive's
claims are not cognizable as there is no legal duty upon which to premise the
claim of negligence.
Id. at 701 (citing, Moss Rehabilitation
v. White, 692 A.2d 902, 905 (Del.1997)).
Scope of the Educational
Malpractice Doctrine
The application of the
educational malpractice doctrine has been uniquely broad, regardless of the
educational facility involved. Courts have held such actions – whether
alleged by a student or a third party – to be invalid where alleged against
public schools (Peter W. v. San Francisco Unified Sch. Dist., 131 Cal.
Rptr. 854 (Cal. Ct. App. 1976); Tubell v. Dade County Public Schools,
419 So.2d 388 (Fla. Dist. Ct. App. 1982); Doe v. Board of Education of
Montgomery County, 453 A.2d 814 (Md. 1982)), colleges and universities (Finstad
v. Washburn Univ. of Topeka, 845 P.2d 685 (Kan. 1993); Ross v. Creighton
Univ., 957 F.2d 410 (7th Cir. 1992); Doe v. Yale University, 748
A.2d 834 (Conn. 2000)), community colleges (Lawrence v. Lorain County Cmty.
Coll., 713 N.E.2d 478 (Ohio Ct. App. 1998)), seminars (Bunker v.
Association of Missouri Electric Cooperatives, 839 S.W.2d 608 (Mo. App.
W.D. 1992)), daycare facilities (Rich v. Kentucky Country Day, Inc., 793
S.W.2d 832 (Ken. App. 1990)), and private proprietary and trade schools (Page
v. Klein Tools, Inc., 461 Mich. 703, 610 N.W.2d 900, 905 (2000)).
Exceptions and
Distinctions to General Rule
Montana is the only
jurisdiction known to recognize an action for educational malpractice. In
B.M. by Burger v. State of Montana, 649 P.2d 425 (Mont. 1982), the
Montana Supreme Court considered a state statute which created a special class
of students for which special education programs were provided. Burger,
at 427. The complaint of the student-plaintiff in Burger was that
the school district failed to follow the statutory and regulatory policies
governing her placement in the special education program. Id.
After holding that the plaintiff "clearly fell within" the class of
students created by the statute, the Burger court held that, under the
statute, school authorities owed the child a duty of reasonable care in testing
her and placing her in an appropriate special education program. Id.
In so holding, however, the Montana Supreme Court expressly left to the trier
of fact the question of whether a duty was in fact breached by the school
district and, assuming a breach, whether the child was injured by the breach of
duty. Burger, at 427.
The plaintiff's claim in
Burger was limited to the application of a specific statute placing a
duty of care on educators in limited circumstances, a circumstance not present
in the vast majority of jurisdictions. Further, the essence of the
plaintiff's claim was less about the quality of education that she received and
more about the failure of the school district to place her in the proper
class. As such, even the Burger court was not required to wade into
the "day-to-day operation of the educational process."
A distinction (rather
than an exception) from the general rule was made in Glorvigen v. Cirrus
Design Corp., 2008 WL 398814 (D. Minn. 2008). In Glorvigen,
defendant Cirrus, an aircraft manufacturer, sold an SR-22 aircraft to one Gary
Prokop. Approximately one month after the sale, Prokop was piloting the
SR-22 when it crashed, killing both Prokop and his passenger. The
survivor-plaintiffs filed wrongful death actions alleging that Cirrus agreed but
failed to provide Prokop with flight training that would have taught him
procedures for engaging the SR-22's autopilot which, in turn, would have guided
the aircraft through the weather conditions that existed at the time of the
crash.
It was undisputed
between the parties that Cirrus had agreed to provide "standard two-day
transition training" as part of the purchase price of the SR-22. The
training was described in the SR-22 specifications as follows:
"Pilot Training will consist of . . . Aircraft systems training with
emphasis on the innovative aspects of the SR22. Examples include combined
throttle/propeller control, side yoke and autopilot/trim system." Glorvigen,
2008 WL 398814, at * 1. What remained in dispute was whether the training
actually took place. The plaintiffs alleged that it had not; Cirrus
alleged that it had.
In analyzing the issues,
the U.S. District Court for the District of Minnesota court made one rather
large assumption: that the training in fact had not taken place. Id.
at * 3. In so doing, the court removed any need to consider or
analyze whether such training was adequate. In other words, the court
chose not to "inquire into the nuances of educational processes and
theories" as prohibited by the landmark Minnesota case, Alsides v.
Brown Institute Ltd., 592 N.W.2d 468, 473 (Minn. App. 1999).
Thus freed, the court
was left only to consider whether a duty existed under Minnesota law for Cirrus
to have provided the training to Prokop – regardless of its quality or adequacy.
"One who voluntarily assumes a duty must exercise reasonable care or he
will be responsible for damages resulting from his failure to do
so." Glorvigen, 2008 WL 398814, at * 3 (citing Isler
v. Burman, 232 N.W.2d 818, 822 (Minn.1975)). While the Glorvigen
court acknowledged that claims which challenged the "general quality of
the instructors" are not actionable in Minnesota, it duly noted that Alsides
nevertheless held that claims alleging a failure to "perform on specific
promises" are actionable if the claims do not involve an inquiry into the
nuances of the educational processes. Glorvigen, 2008 WL 398814,
at * 3 (citing, Alsides, supra, 592 N.W.2d at
472-473).
Further distinguishing
its facts from Alsides and other cases rejecting educational malpractice
claims, including those involving flight schools, the Glorvigen court
noted that Cirrus's primary business was building and selling airplanes, not
training pilots. Glorvigen, 2008 WL 398814, at * 4. Thus,
the Glorvigen court concluded "under the unique facts of this
case" that: general negligence principles applied; the occurrence
which formed the basis of the action was reasonably foreseeable by Cirrus;
Cirrus had voluntarily assumed a duty; and Minnesota law should "give
recognition and effect" to the duty as alleged by the plaintiffs in their
negligence causes of action.
Educational malpractice
claims also are distinguished from cognizable negligence claims arising in the
educational context. The duty not to cause physical injury by negligent conduct
"does not disappear when the negligent conduct occurs in an educational
setting." Vogel, supra, 754 A.2d at 828. The duty
pertains to an educator using reasonable care so as not to cause physical
injury to a trainee during the course of instruction or supervision. Id.
An example is the duty
of a medical school residency program to train a resident in needle safety and
supervise her, in the course of his instruction, while performing a procedure
involving needles. Doe v. Yale University, 748 A.2d 834 (Conn.
2000). In Doe, the plaintiff filed an action for personal injuries
against her medical school after she had contracted the HIV virus when – while
working as a resident at the defendant university's hospital – she performed an
unsupervised procedure on a patient. Doe held that, in these
circumstances, the plaintiff's case was not a claim for educational malpractice
but rather "a cognizable negligence claim arising in the educational
context" resulting from the "breach of a duty not to cause physical
harm by negligent conduct." Id. at 847.
In so holding, Doe
distinguished the resident's claims from typical claims for educational
malpractice, and reiterated that Connecticut continued to reject the latter
claims. Id. at 846. The Doe court recognized the
critical difference was between claims challenging the educational training, on
the one hand, and claims for negligence that injury occurred in an educational
setting on the other:
If the duty alleged to
have been breached is the duty to educate effectively, the claim is not
cognizable. If the duty alleged to have been breached is the common-law
duty not to cause physical injury by negligent conduct, such a claim is, of
course, cognizable. That common-law duty does not disappear when
negligent conduct occurs in an educational setting.
. . .
The duty of an educator
or supervisor to use reasonable care so as not to cause physical injury to a
trainee during the course of instruction or supervision is not novel.
Id. at 847 (emphasis supplied) (citing Gupta
v. New Britain Gen. Hosp., 687 A.2d 111 (Conn. 1996)).
Thus, a cognizable
negligence case within the educational context is distinguished from a case
alleging educational malpractice where: (1) the claimant is a student;
(2) alleging personal injuries; (3) against his or her school or educator; (4)
arising during the course of instruction. See also, Kirchner v. Yale
Univ., 192 A.2d 641, 642 (Conn. 1963) (action by architectural student
against university for injuries suffered while in woodworking shop); Stehn
v. Bernarr MacFadden Founds., Inc., 434 F.2d 811, 812 (6th Cir. 1970)
(injuries suffered when plaintiff was a student at a school operated by
defendant); Brigham Young Univ. v. Lillywhite, 118 F.2d 836, 838 (10th
Cir. 1941) (plaintiff was a student at the university when she suffered
injuries during a chemistry experiment); Delbridge v. Maricopa County Comm.
Coll. Dist., 182 Ariz. 55, 59, 893 P.2d 55, (1994) (plaintiff was student
at defendant community college when he was injured during a training class); Morehouse
Col. v. Russell, 136 S.E.2d 179, 181(Ga. App. 1964) (student drowned during
swimming class at defendant college); Yarborough v. City Univ. of New York,
137 Misc.2d 282, 283, 520 N.Y.S.2d 518, 519 (N.Y. Ct. Cl. 1987) (student
sustained injuries during CUNY class for "Physical Education for
Elementary School Teachers"); DeMauro v. Tusculum Coll., Inc.,
603 S.W.2d 115, 116 (Tenn. 1980) (student was injured after being struck by a
golf ball while participating in defendant's physical education class); Sewell
v. London, 371 S.W.2d 426 (Tex. Civ. App. 1963) (high school student
injured during building trades class).
Conclusion
Perhaps the Connecticut
Supreme Court has best stated the public policy reasons behind the educational
malpractice doctrine:
Among other problems for
adjudication [of educational malpractice claims], these claims involve the
judiciary in the awkward tasks of defining what constitutes a reasonable
educational program and of deciding whether that standard has been breached.
In entertaining such claims, moreover, courts are required "not merely to
make judgments as to the validity of broad educational policies . . . but, more
importantly, to sit in review of the day to day implementation of these
policies."
Gupta v. New Britain
Gen. Hosp., 687 A.2d 111, 119 (Conn. 1996) (citations omitted).
The philosophy generally
followed by courts seems to be that the courts are ill-equipped to involve
themselves in day-to-day educational decisions to determine what should or
should not be taught in a particular curriculum and how well is "good
enough." See, Miller v. Loyola Univ. of New Orleans,
829 So.2d 1057, 1061 (La. Ct. App. 2002) (holding that it is not the place of
the court system to judge the adequacy of the instruction provided by
educators). The concern is that recognition of educational malpractice
claims would inevitably turn the courts into "curriculum police,"
forcing them to sit in day-to-day review of specific academic choices, a
responsibility the courts are ill-suited to carry out.
William L. Yocum is a partner and active trial lawyer in the
business litigation practice group at Polsinelli Shughart PC in its Kansas City
office. Mr. Yocum has extensive experience defending and trying numerous
cases in all areas of personal injury litigation for both self-insured and
insured clients. Representative experience includes electric utility
litigation, aviation litigation, products liability cases and health care
litigation. Mr. Yocum is a member of DRI and the Missouri Organization of
Defense Counsel.
Cary Miller is of counsel with Polsinelli Shughart
PC. His practice emphasis is in insurance coverage and insurance
defense litigation. Mr. Miller earned his undergraduate degree
in Business Management in 1985 from Iowa State University and his JD from
the University of Iowa College of Law in 1988. He is a member of the
Kansas City Metropolitan Bar Association (KCMBA) and the Missouri
Organization of Defense Lawyers (MODL). Mr. Miller lives in
Kansas City, Missouri with his wife.