Trustee Handbook Online: Liability of Library Board

Libraries face two types of liabilities.

Liability of individual board members is covered by:

K.S.A. 60-3601 says that when nonprofit organizations have general liability insurance coverage trustees are not liable for damages in a civil action or omissions by themselves or library staff and other library volunteers unless trustees authorize, approve, ratify, or otherwise participate in an action or omission that is a willful or wanton misconduct or intentionally tortious conduct....

K.S.A. 75-6119(b) (in the Kansas Tort Claims Act) says. "A member of any appointive board ... who is acting withing the scope of such member's office and without actual fraud or actual malice shall not be liable for damages caused by the negligent or wrongful act or omission of such member or board...."

K.S.A. 12-1223 says library boards:

"constitute a body corporate and politic, possessing the powers of a corporation for public purposes, under the name and style of "the board of directors of ________ (name of municipality) library", and

under such name may contract, sue and be sued and acquire, hold and convey real and personal property shall be subject to the approval of the governing body of the municipality."

Definitions

"Willful or wanton misconduct" = Actions deliberately intended to harm or completely indifferent or disregard to the safety of others.

"Actual fraud" = intentionally deceiving for gain or injuring another party. Constructive fraud is misrepresentation of fact giving unfair advantage over another. Law cases treat constructive fraud as "actual fraud," even when intent cannot be proven, because the gain or damage is the same. Hoaxes are intentional deceptions without gain.

Actual malice is publishing statements about public officials that are knowingly false or with reckless disregard for whether they are true or false.

Negligence is the interaction of several legal concepts developing over time: "reasonable person", "duty," and "proximate cause."

A "reasonable person" is the composite of a community's judgement of how a typical community member should act in potentially harmful circumstances. The law takes into account a person's knowledge, experience and perceptions for determining whether a person is acting reasonably. However, the law also assumes everyone knows and should act upon facts about the world, e.g., ice is slippery, electrical wires are dangerous, and will not accept claims of ignorance about basic facts. So negligence is no acting as a reasonable person should act in similar circumstances.

Everyone has a general "duty" to to everyone else to use reasonable care for protecting the physical and property of others. Courts, however, would not consider property owners to have duty to protect trespasser's from physical or property harm. Library boards have an "affirmative" duty to protect people from physical and property harm on library property when the library is open.

"Proximate causes" is about whether a negligent event is reasonably expected to produce damage. Library staff find water on the floor, but do not wipe it up. Someone slips on the water and falls. While falling the person reaches out for a handhold and pulls another patron's laptop onto the floor breaking it. Is the library reasonable for damages to the falling person and the computer? Since water on floors creates a reasonable probability someone will fall and hurt themselves, the courts would hold the library responsible for damages caused by the fall. Water on the floor, however, would not reasonably be expected to cause a laptop to be dropped on the floor. So courts are unlikely to hold the library responsible for damage to the laptop.
- Ordinary negligence = Carelessness. Omission of reasonable caution or care with respect to the rights of others.
- Gross negligence = Recklessness. Conscious and voluntary disregard of the safety, lives and rights of others. Just shy of intentional evil.
Nonfeasance = Failure to perform an official duty or legal requirement