No Playing Around: Tort Liability And School Yard Injuries

Introduction

Recently, the public learned of a lawsuit against two children regarding a schoolyard incident in 2015. With school back in session, what does this current state of affairs mean for students, school boards - and even parents moving forward? Furthermore, what should insurers be thinking about as children fill the halls and playgrounds for another year?

A Push, a Shove, and a Plaintiff

In 2015, two 10 year-old students at a Toronto Catholic school were outside for recess. The pair decided to play a "game" with another student, where one of them pushed the student and the other kneeled behind him to trip him. The third student claimed he did not want to be pushed, but that his classmates ignored him. The parents of the two 10 year-olds insist their children did not intend to cause any harm. However, the third student suffered a broken arm in the incident.1

Eight months later, the mother of the injured boy filed a lawsuit for $600,000 in damages plus costs. The lawyer for this young Plaintiff claimed he suffered "great pain" and his mother had to take time off work to care for him after the incident. 2

This lawsuit names the Toronto Catholic District School Board ("TCDSB") and the two children involved as defendants. The Ontario School Boards' Insurance Exchange, which provides insurance coverage to the TCDSB, also crossclaimed against the two children. The crossclaim alleges the children were negligent and lacked respect for the "hands off policy" at school.3

My Child Did What? A Primer on Intentional Acts and Negligence

Many parents and insurers would be shocked to learn that children are being sued for schoolyard incidents. However, the existence of a lawsuit does not always mean that a child or anyone else will be found liable. There are different considerations based on whether the acts were intentional or negligent.

Intentional Acts (Including Crimes)

To be sure, crimes such as assault and battery are intentional acts that could lead to criminal charges. However, most children would not be charged criminally for schoolyard incidents. The Youth Criminal Justice Act ("the YCJA") acknowledges that "extrajudicial measures are often the most appropriate...to address youth crime".4 Moreover, a youth must be between 12 and 17 years-old to be charged under the YCJA. Youth under the age of 12 are considered "children"5 and cannot be charged criminally in Canada.6

Of significance to this article, battery is an intentional tort that...