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Civil Practice and ProcedureThe newsletter of the ISBA’s Section on Civil Practice & Procedure

August 2012, vol. 58, no. 2

Does your claim allege educational malpractice?

Does an injured person have a cognizable claim for negligence against a former teacher for an injury occurring after instruction that the injured person claims can be traced to poor teaching? Probably not, according to a recent Illinois Appellate Court decision, Waugh v. Morgan Stanley and Co., Inc., 2012 Il App (1st) 102653, 359 Ill.Dec. 219, 966 N.E.2d 540 (1st Dist. 2012) (“Waugh).

A claim for negligence against teachers and educational institutions for the quality of education received sounds in the tort of educational malpractice. This tort, also described as educational negligence, is not cognizable in Illinois. Educational malpractice claims are those which raise “ ‘questions about the reasonableness of an educator’s conduct in providing educational services’ or which require ‘an analysis of the quality of education.’ “ Id. at ¶ 28, 966 N.E.2d 549, citing Dallas Airmotive, Inc. v. FlightSafety International, Inc., 277 S.W.3d 696, 700 (Mo. Ct. App. 2009); Florvigen v. Cirrus Design Corp., 796 N.W.2d 541, 552 (Minn. Ct. App. 2011). The Dallas Airmotive court provided the following examples of negligence claims that sound in educational malpractice:

If a negligence claim raises questions concerning the reasonableness of the educator’s conduct in providing educational services, then the claim is one of educational malpractice. Christensen v. S. Normal Sch., 790 So.2d 252, 255 (Ala. 2001). Similarly, 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. Id. 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 Western Connecticut, Inc., 754 A.2d 824, 828 (Conn. App. Ct. 2000). A claim that educational services provided were inadequate, substandard, or ineffective constitutes a claim of educational malpractice. Lawrence v. Lorain County Cmty. Coll., 127 Ohio App.3d 546 [Ohio Ct. App. 1998]; Alsides, 592 N.W.2d 473. 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 (N.Y. App. Div. 1996).

Dallas Airmotive, 277 S.W.3d 700.

Recently, in Waugh, the Illinois Appellate Court, First District, Fourth Division, considered a claim in which the appellant alleged, in relevant part, that a flight instructor negligently trained an airplane pilot and, due to this negligent instruction, the pilot thereafter crashed the aircraft. The plaintiff made multiple allegations of ineffective training by multiple parties in the circuit court.

The allegations included that the instructor failed to “properly teach, train, and instruct” the pilot how to “competently and safely operate the aircraft so as to ensure a safe landing; engage in and execute safe approach and landing maneuvers; maintain proper control over the aircraft so as to maintain its flight path” and to “engage in and execute proper emergency maneuvers.” This instruction, according to the complaint, was negligent and ultimately led to the crash that killed all four occupants of the aircraft.

The circuit court dismissed those claims that asserted certain defendants, a flight instructor and flight training schools, failed to properly train the pilot in how to fly and land the aircraft. The parties appealed, arguing that the trial court improperly dismissed the claims because the claims were not, in fact, claims for educational malpractice.

In a 2-1 decision, the appellate court found that the circuit court properly characterized the claims as sounding in educational malpractice and, because claims for educational malpractice are not cognizable in Illinois, properly dismissed the claims. Writing for the majority, Justice James Fitzgerald Smith explained that the dismissed claims sounded in the tort of educational malpractice because

[t]he nature of the appellants’ claims that were dismissed by the trial court focuses on the reasonableness of defendants’ conduct in providing training, that is, education, to [the pilot], and would require a jury at trial to analyze the quality and methods of the education provided to [the pilot], as well as an evaluation of the course of instruction and the soundness of the teaching methods.

Waugh, ¶33, 966 N.E.2d 550.

The court went on to hold, as a matter of first impression, that the tort of educational malpractice is not cognizable in the state of Illinois. It noted that most jurisdictions that have considered the issue of educational malpractice have found the tort non-cognizable:

Those courts that have refused to recognize claims of educational malpractice have done so based on various public policy grounds, including: (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.’ (Internal quotation marks omitted.) Alsides, 592 N.W.2d 472.

Waugh, ¶37, 966 N.E.2d 552.

It also noted that the Dallas Airmotive court found these same public policy concerns persuasive when dismissing claims based on educational malpractice against flight training schools and flight instructors. The Dallas Airmotive court, it noted, differentiated an injury caused by an instructor during the course of instruction and an injury arising after the completion of the course of instruction. The first may be a cognizable tort sounding in ordinary negligence, as an instructor clearly has a duty to use “reasonable care so as not to cause physical injury to a trainee during the course of instruction or supervision.” Dallas Airmotive, 277 S.W.3d 700.

By way of example, the court noted that “a woodworking shop instructor has a duty ‘to exercise reasonable care not only to instruct and warn students in the safe and proper operation of the machines provided for their use but also to furnish and have available such appliances, if any, as would be reasonably necessary for the safe and proper use of the machines.’ “ Dallas Airmotive, 277 S.W.3d 700 - 01 (quoting Kirchner v. Yale University, 192 A.2d 641 (Conn. 1963)). The second, however, may sound in educational malpractice if it pertains to the quality of instruction and attacks the quality of instruction. Dallas Airmotive, 277 S.W.3d 701.

Because appellants’ claims sounded in the tort of educational malpractice, a tort which is non-cognizable in the state of Illinois, the Illinois Appellate Court affirmed the judgment of the circuit court, noting:

In essence, plaintiffs argue that the negligent performance of a former student [ ] caused an accident involving third parties and that the former student’s negligence was itself caused by the poor quality of the education or training that the instructor or instructional institution [ ] provided to the student. These are claims of educational malpractice and are barred, therefore, as a matter of law.

Waugh, ¶43, 966 N.E.2d 554.


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