Don’t Know Much Biology
An 8th grade student cut through two fingers and severed a tendon while taking the cap off a scalpel. Heuser v. Community Insurance Corporation, 2008 AP 2760. The student sued the Kenosha Unified School District. The School District asserted immunity. The plaintiff argued that the School District was not entitled to immunity under the known and compelling danger exception.
On the day of the accident, students were to use scalpels to dissect the reproductive parts of a flower. The teacher taught four sections of the class and all the classes performed the lab on the same day. The teacher started the first class with standard lab safety instructions. She did not provide any specific instructions on the use of the scalpel.
During the first class, two students received lacerations while using the scalpels. The teacher filled out incident forms after the two injuries. On one form, she explained that the student was cut when he accidentally "got his hand in the way" of his lab partner. The teacher did not investigate how the second student was injured. The incident forms included the following question: "What recommendations do you have for preventing other accidents of this type?" The teacher responded: "Limit scalpel use or use scissors instead." The teacher did not heed her own advice in any of the three classes that followed. Nor did she change her general lab safety instructions. She continued to conduct the classes as if the injuries had never occurred.
The plaintiff was using the scalpel for the first time in the final class. He attempted to remove the protective cap, but it was stuck. When he pulled harder on the cap, it suddenly broke free and the blade caused the injury. The matter was tried to the court and the judge ruled in favor of the plaintiff. The School District appealed.
The first question asked of the appellate court was whether the trial court property concluded that the teacher was negligent. The appellate court found that fault lied with the teacher for doing nothing "in the face of personal knowledge that using the scalpels raised a safety issue." The teacher had proposed alternatives in her reports and then completely ignored her own advice. Her failure to act upon her own recommendations was negligent.
The second question was whether the court properly applied the known present danger exception to the general rule of governmental immunity. The court stated, "so long as a precautionary measure is taken in response to an open and obvious danger, the law is that the government remains immune from suit." In this case, the teacher took no precautionary measure to deal with the danger she had become aware of in her first class. Had the teacher taken any action to address the danger, such as emphasizing scalpel safety in her general instructions, immunity would have applied.
