Does your child have Asbestos in their school? Below is a summary of the book “Asbestos in Schools” which outlines the danger of asbestos in a place of education.


Read our summary.


School exposure to legal liability is great, and it comes not just from students and other private citizens who may have breathed a fiber of asbestos on the premises.


The EPA began aggressively pursuing school districts even before abatement became mandatory. For example, in 1984 the EPA obtained a $237,500 fine against the Board of Education of the City of New York, even though New York State’s legislative abatement concern preceded that of Congress by one year and the EPA acknowledged that New York City had been “aggressive” in it removal program. For another example, a high school in duchess County, New York, was closed by court action in April 1984 because it had asbesto ceiling tiles.


legal exposure exists in the process of removal as well, and insurance should be considered, for there is case law supporting the proposition that the building owner is responsible for the mishaps of the removal contractor; even when the building is being demolished. there also have been several instances of criminal responsibility. Congress greatly ameliorate theses risks as part of its 1986 mandate (see Appendix A) by eliminating joint liability and by limiting liability to instances of actual negligence.


Congress made no attempt to limit liability for failure to abate,however and it is here that the greatest risk lie.

Potential civil liability of schools varies from state to state and is a subject that should be scrutinized carefully by counsel to every school. It is a great mistake merely to rely upon the old common law rule of sovereign immunity (the general rule that government may not be sued without its consent). Private schools, of course, have no immunity defense whatsoever.


In addition, the facts will vary greatly from situation to situation. For example, it has been ascertained by the Justice Department that at least some school boards were not aware that the products applied in their schools contained asbestos. In most, on the other hand, asbestos was specified, either as a legal requirement


Consider the following hypothetical situation. Jones, head of the state building inspection unit, tells Smith, principal of Public School 113, that the school has been damaged by a recent ground tremor and is certain to collapse the next time it is exposed to a west wind of more than 10 knots. Smith reports the conversation to the school board. Without dissent, it is decided that school must go on and the warning will not be heeded. A few days later the weather bureau forecasts gale force west winds for the following day, During that day the school collapses, causing student Brown to become a paraplegic for life. Does student Brown have a cause of action against the school system? Against the individual members of the school board? Against Smith? Could student brown reasonably hope for punitive damages as well as actual damages?


The answer to all these question, in most states, is “yes”

Our general rule that government may be sued only with its own consent flows from the Anglo-American legal fiction that “the king can do no wrong.” This rule, which permeates property and contract law, was founded in reasoning that all individual rights flowed from the sovereign’s power. Thus the use of that power against the government itself was prohibited and government could be sued only with its own consent.


All the government bodies in charge of public schools are within the definition of “sovereign.” Several arguments have been advanced in support of the conclusion, including the following. Schools are acting for the benefit of the state and public, and consequently partake of the state’s sovereignty with respect to tort liability. There are no means for schools to pay for their torts because the only funds available are those provided for school purposes, and paying for torts is not a school purpose. The school has no right to hurt anyone, so when a school’s agent hurts someone, he or she is not acting within the scope of his or her authority and the school cannot be held liable. Public education is for the benefit of all, and welfare of the few must be sacrificed in the public interest.


All these arguments are somewhat circular and have eroded to varying degrees in recent years. In some states the courts have introduced a variety of fictions and artificial distinctions to further circularize the arguments to result in tort liability.


Liability has been found when an eight-year-old fell off a balance beam that was standard gymnastic equipment purchased from a leading manufacturer; when a student injured himself by falling from a nonfunctional fire escape that had not been removed but was off limits to students; when injuries stemmed from failure to maintain an adequate railing on stairs, failure to repair playground fences, and failure to clear an uneven sidewalk of ice; and’ on an absolute liability theory (such as that being used against asbestos companies), when an eight-year-old was injured by explosive chemicals stolen from a school by thieves and abandoned on school grounds.


however, liability has not been found (in a nonschool case) when a state-owned chemical plant failed to install legally required health protection for employees and when a music teacher contracted a serious disease after being requires, against her will, to use a room and pitch pipe that had been used immediately before by another teacher known by the administration to have a contagious disease.


In addition to civil liability there is potential criminal liability. Building owners have been indicted, for example, for failure to give proper notice of removal activity. it is not a far cry for such owners to be indicted for failure to remove in a timely fashion.


perhaps the most serious exposure is under CERCLA, described later in this chapter, which may empower the federal government (and certain others) to force their way in, perform the abatement as they see fit, and collect the cost from the owner and the responsible individuals associated with the owner. CERCLA, for practical reasons, may be of most concern to private schools. CERCLA-type liability is partly ameliorated and partly reinforced under the 1986 congressional mandate (see Appendix A).


A noted briefly above, the 1986 mandate also affords potentially great relief for school authorities who strictly follow the procedures called for under the Act.


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