Thomas L. Sweeney Member Ohio Bar and Professor of Chemical Engineering Ohio State University Columbus, 43210
The Personal Liability of Chemical Educators
Before a court will permit damages to be awarded there must be actual loss or damaee - -proximate1.v caused by a breach of duty on the part of the one from whom compensation is sought.
The Chemical Educator is exposed to potential liability in a wide varietv of situations. We are concerned here with negligence in teaching situations, although some consideration will be given to relations with other faculty members and with graduate students and to consulting relationships. The archetype of negligence cases for the chemical educator involves explosion in the laboratory, perhaps accompanied by fire. Who is liahle when there is an injury in the laboratory? Is it alwavs the instructor? Variations in state law make anv generalizations in this area misleading hut in the overwhelmine number of cases. no one a t all is liable in the sense that we i s e the term here,bf being hound to pay damages. I t mieht he exoected that such iniurv " - would rewire compensation from the instructor. But this is not so. The instructor does not act as an insurance comuanv . . for his students. paying out claims merely upon p r o d of loss. To the contrary, the instructor is held liahle only under certain conditi~ms. almost nlways involving fault, in some sense, on his part. 'I'ht. hroad area 01' law important here is ralled tort law. T o n law iaroncerned with ci\.il, asopposed 111criminal,wrongs or injuries other than those arising solely out of contract. I.iahility is not imposed in the absence of some type of fault on the part oftheactor.'l'he artor may intentionally cause harm. or he may negligently cause harm, or he may cause harm by engaging in ultrahazardous activities. Of these three bases of liability, negligence is the most important to the chemical educator. Before a court will permit damages to he awarded there must be actual loss or damage proximately caused by a hreach of duty on the part of the one from whom compensation is sought. Near misses don't count. "Almost got hurt" is not sufficient. There must be actual damage. Proximate cause or, as it is sometimes called, legal cause, is a source of great difficulty to legal theoreticians. Obviously, any event, including a laboratory explosion, can he traced back to a large number of causes. The person who ordered the chemicals and the committee that originally approved t h e establishment of the course could he said to have caused the explosion. The law will not, however, recognize these or the millions of additional distantly related causes as proximate causes. T o he a proximate cause the conduct complained of must he a substantial factor in bringing ahout the harm. Just what constitutes a substantial factor is for the trier of fact, ordinarilv. a -iurv, .. to decide. While it is not unusual to have more than one proximate cause, i t is difficult to conceive of a realistic situation in which there would he a large number of proximate causes. The duty imposed, for example, on the professor of chemistry is the same as that imposed upon every person. That is, 134 1 Journal of Chemical Education
he must act reasonahly considering all of the circumstances. This is an objective standard and refers not to the particular professor involved but to a reasonable man of ordinary prudence uossessina at least the minimum skill and knowledge necessary to he professor of chemistry. The knowledge that a professor of chemistry in charge of a laboratory would be assumed to have is not necessarily the same as the knowledge that such a professor would actually have. For examnle. he would he assumed to know eeneral laboratory safet; procedures. He probably would be assumed to have knowledge of all safety hazards concerning the particular laboratory experiments and procedures used that have been renorted in the chemical literature. or a t least those retrievahie by a reasonable search of chemical Abstracts. He would probably he chargedwith a knowledge of the toxicity information contained in the Registry of Toxic Effects of Chemical Substances ( I ) published annually by the National Institute for Occupational Safety and Health. NIOSH also issues criteria documents (2)for recommended standards for occupational exposure to various chemicals. It plans to issue about one hundred of these documents by 1980. Knowledge of the information contained in these widely available documents would also likely he charged to the professor. Although the Occupational Safety and Health Act does not apply to students as such and does not create any new private cause of action (3). the regulations puhlished by OSHA contain much information on general safety procedures and are readily available. I t is therefore possible that the professor would he charged with a knowledge of OSHA safety regulations.
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The duty imposed on the professor of chemistry is the same as that imposed upon every person. he must act reasonably.
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He would also he charged with a knowledge of any applicable statute requiring safety glasses or other safety equipment. For example, some states require every student and teacher of a college to wear industrial quality eye protective devices at all times while participating in or observing chemical educational activities involving exposure to caustic, explosive, or hot materials or other hazards (4). The professor would he assumed to know the general level of his students' competence and experience and what information they are likely to possess and what information that he must impart to them for their own safety.
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The duty. is to not expose others to an unreasonable risk. Not all risks are unreasonable. It clearly would be impossible to conduct a program in chemical education without exposing the participants to some risk. As may he apparent, this reasonable person of ordinary prudence is not any real person. He has all of the knowledge that he should have and-he never acts unreasonably or imprudently. The dutv itself that each of us. includine the lahoratorv professor, has is to not expose othe'rs to an unreasonable risk. Not all risks are unreasonable. It clearlv would he im~ossihle to conduct a program in chemical education without exposing the participants to some risk. Liabilitv rests upon the exposure to &reasonable risk. There are seveial fact& which must be considered in determining whether a risk is an unreasonable risk (5).One of these is thk probability that an untoward occurrence will take place. For example, there is always some danger of explosion and fire in a chemistry building. The probability, however, varies from situation to situation. In an Pxperiment involving explosive gases the probahility of explosion and fire may he higher than in an experiment involving inert " eases. Another factor is the gravity or seriousness of the injury which is likelv to result if the occurrence does take place. An explosion would likely create more serious injury than, say, a ruptured water pipe. A third factor to consider when determining whether a risk is unreasonahle is the burden of avoiding the feared occurrence. Safety glasses, for example, are a slight hurden. An explosion harrier is a heavy hurden hut it may he necessary in some rases. A balancing test is used. The hurden of prevention must he balanced against the liklihood that the occurrenre will take place and the likely seriousness of any resulting injuries. Many persons are under the mistaken belief that if they follow customarv ~roceduresthev will satisfv the dutv placed upon them not i;subject others to unreasonable risk;; that is, if everyone else does it, it must he all right. Although it is true that a custom generally followed by those in a given line of work carries with i t an inference of the absence of negligence, thereare a number of cases in which a custom was found to have been a negligent custom. For example, it is cust&&y, in some areas, for teachers to absent themselves from classroom or lahoratorv for brief periods. In a case ( 6 )in the state of Washington, an experiment involving ether was being performed in a basement lahwatory in the Chemistry Building. Aftcr two small fires, the prufeswr was called from his offirr on the second floor. He examined the eauiument and materials and instructed the student involvei to apply less heat. The exhausted fire extinguishers from the two small fires were put into an adjacent hall and the experiment was resumed. After the professor returned to his office, a third, more serious fire broke out. A junior chemistry student working in another laboratory came to the rescue. He mahhed one of the fire extineuishers in the hall, not knowing that it was empty, and rushed into the fire area. He was se: verely injured in an explosion which took place shortly thereafter. A crucial issue in this case was that of adequate supervision. Expert witnesses differed as to the adequacy of
...the court stated, "It does not seem inherently unreasonable to expect that teachers will be present in classes in which the.y are entrusted to teach."
the supervision hy the professor hut the jury found for the injured student in the amount of $"3,000. In another teacher ahsence rase (71, the court stated, "It does not seem inherently tmreaamable to exlwct that teachers will he nresent in rlasses in ahirh rhev nrcentrusted to teach." Later, the court said, "What this means must depend upon the circumstance under which the teacher absented himself from the room. Perhaps relevant considerations would be the activity in which the students are engaged, the instrumentalities with which they are working (band saws, dangerous chemicals), the age and composition of the class. . . ." The key issue in teacher absence cases is whether the teacher's presence would have prevented the injury. . . A teacher may have been reckless in leaving a lahoratory unsupervised or in the hands of an unwalified assistant hut if the ~articuliu injury complained of can not he traced back to theteacher's absence, no recovery will be allowed. A jury usually determines whether the required standard of care has been met. In some cases, however, the judge will instruct the iurv as to the issue of nedieence. An example of which was intended this is the uiex&ed violation of a st&& to protect the iniured person from the tvpe .. of harm which actually occurred. The safety glaiies requirement mentioned earlier is a suerific rase in which a uarher whu failed to require the wearing of safety glasses might be held negligent foiviolation of a statute (8). A professor named in a tort action is not without legal defenses to recovery. A traditional defense is that of contributory negligence. If the injured party's conduct also meets the tests of negligence, he is barred from recovery even though his departure from the reouired standard of conduct does not aobear as significant as the defendant's.
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the teacher knows so much and the student knows so little, that there is not much room for contributary negligence on the part of the student. There are two problems with contrjbutory negligence in the teacher-student relationship as seen from the viewpoint of the teacher. The first is that the teacher knows so much and the student knows so little. a t least in theorv. ., that there is not much room for contributory negligence on the part of the student. except in horseolav and the like. The second ~rohlem with cohtrib&toryne&ehce is that it is fast disappearing from American . iurisprudence. Just a few vears aeo. . .. . almost every state recognized umtrihutory negligenre as a defense. Now, due to either lerislative or iurlicial action, the maioritv . of states do not permit contributory negligence to he a complete bar to recovery. What has been substituted is called comparative negligence. Under the typical comparative negligence rule, the claimant's damages are reduced by the percentage of fault that he himself contributed to the injury. The percentage is set by the iurv. In some states. the claimant's nercentaee of fault must n o t be greater than the defendant's permiGecovery. If, for examole. the damaees are $100.000 and the iurv finds that the claim&'s negligence is 25% and the defeidak's negligence ~
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Volume 54, Number 3. March 1977 / 135
If the university is forced to pay a judgment solely because o f a professor's negligence, i t has, under traditional rules, a right o f indemnity from the professor.
is 75%,the defendant need pay only $75,000. In states in which the traditional contributorv defense is still recoe. neelieence .. . . nired, rhe defendant u,ould pay nothing. The dcmibc of the defense dn,ntrihutors nezlicence means that there is now liability where formerlythere was none. I t is unlikely that a dramatic rise in negligence actions against teachers will result due to this alone but when viewed in the context of the practicalities of personal injury litigation, it is likely that some increase will occur. A second legal defense, a t least potentionally available to chemical educators, is called assumption of risk. There is an obvious danger in a chemical laboratory and one who knowinelv and voluntarilv suhiects himself to that danger mav be sayi to have assumed t i e risk. Since both kuoGledge "and volition are i m ~ o r t a nhere. t it is more likelv that this defense could be applikd to a fellow faculty meiber or a graduate student than to a freshman. In some cases, a faculty member cannot be successfully sued because of an immunitv. In case (9)decided in 1974. the complaint against the chemistry professor alleged A, He failed u, pnqxrly unrn 2nd inslruct the p l n i n r i f l d t h c poss~hle danger ot the alurcwd I n l h r . > l q experiment:H,He luiled mprov~de adequate suprr\isim t o itudents placed under hm eontrul, C I He permitted s n d experiment t,, be suprrvicrd lr) pcrscmq larking the neccsmry q d i f t c a l ~ m and s skill;: I), He fmled t o exeniie pn,per ; n He ~ ~tnhd ~ l c
