Playing Smart changelabsolutions.org | kaboom.org 59 during the school day – putting inspection and maintenance protocols in place, training teachers and staff, and following relevant health and safety regulations – serve the same purpose after hours. They decrease the likelihood of an injury – and increase the likelihood that in the event of such an injury, a court would find that the school exercised reasonable care and therefore was not liable. Legal Protections All states offer schools and other public entities some degree of legal protection from liability. The level of protection varies widely, both from state to state and according to the specific situation and activity at hand. This section will introduce three kinds of legal rules that may limit schools’ liability exposure: governmental immunity, recreational user statutes, and limits on damages. It is intended as an introduction to these legal concepts, not in any way a comprehensive guide to states’ liability laws.82 Governmental Immunity83 Immunity is a global protection from tort liability that is given based on policy considerations broader than any individual situation. Good Samaritan laws are one example of immunity: most states protect citizens from liability if they attempt to help or rescue someone in imminent and serious danger, provided the attempt is not made recklessly. Legislatures want to encourage citizens to help others in an emergency, so they protect those Good Samaritans from liability. All states have some form of governmental immunity that limits the extent to which public agencies – including school districts, public officials, and sometimes employees – can be found liable for harm they cause.84 The idea behind governmental immunity is that it protects the public’s funds, because any judgment against a public agency or school district is paid out of the public purse.85 The argument on the other side is that governments and public agencies should be accountable for their actions in the same way private citizens are; if they act irresponsibly and cause harm, they should pay for that harm. States balance these competing interests – the desire to insulate government agencies from liability while still holding them accountable for their actions – by recognizing some form of governmental immunity, but limiting the level of protection it affords and the range of situations in which it applies. As states strike this balance in different ways, the scope of governmental immunity varies widely from state to state.86 In states such as Arizona87 and Louisiana,88 for example, governmental immunity is very narrow and offers little protection to school districts. Meanwhile, in states like Georgia,89 Texas,90 and California,91 governmental immunity is broad and protects schools and cities in most situations. A Note on Immunity When a school (or other defendant) in a lawsuit is immune, it cannot be made to pay monetary damages to the plaintiff in the lawsuit. A school can still be sued, however, and the school has to defend the lawsuit. The expense of having to defend against a lawsuit is one reason why, even with strong immunity, schools may still be reluctant to allow community use of facilities. If governmental immunity does not apply, a lawsuit against a school district proceeds according to the first four elements of negligence tort law, outlined in this chapter. Even if a school has no immunity, it may prevail in a lawsuit.
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