School Failure to Protect Can Result in Injury Claim Liability to COVID Victims
Right now, despite the continuing presence of COVID-19 in our area, Indiana schools are opening for the 2020-2021 School Year. Some school districts are opening virtually, as for example the schools in Michigan City, Indiana where students will attend classes online on August 24, 2020, until their Fall Break on October 19, 2020. Others are inviting students to return to their school campuses for in-person learning, including the Valparaiso Community Schools (“VCS”) where classes resumed on August 12, 2020.
Given that the Coronavirus continues to spread through Indiana, there is a high probability that some students, teachers, and staff who comply with in-person learning on school campuses in Indiana will fall ill with COVID-19. What happens then? Is the Indiana School District who authorized the return to campus on-site schooling responsible for their harm?
Liability Issues for Injuries Sustained as a Result of Re-Opening Indiana Schools
Under the personal injury laws of the State of Indiana, school districts that have made the decision to allow in-person learning may be held liable under state negligence laws if the COVID-injured student, teacher, or staff member can demonstrate there was a duty of care owed to them which was breached by the school authorities.
Duty of Care: Schools
This is no surprise to the school districts. They have been public not only with the reasons behind their decisions to re-open campuses, but also with their concerns about being held liable for Coronavirus injury claims in the future. See, “Indiana Schools Hoping to Avoid Lawsuits as They Reopen,” by Emma Kate Fittes and published in the Indianapolis Business Journal on August 6, 2020.
Avoiding liability in these situations, from the Indiana school district’s perspective, involves a demonstration that reasonable and prudent steps are being taken on the campus and in the individual classroom to protect against infection with the Coronavirus by anyone present (student, teacher, staff member, parent, etc.).
Things like masks and social distancing are being required at school. Extracurricular activities are being treated differently than classroom participation. Published plans of action have been shared, as for example the VCS’s “Return to Learn 2020-2021” plan.
Duty of Care: Potential Victim
Likewise, guidance has been shared on when it is appropriate for someone to be on a school campus. These are actions arguably describing the duties being placed upon students, parents, and employees. If violated, this published guidance might be used as a defense against liability by the school district.
The Indiana Department of Health has published a chart detailing when students, faculty members, and staff members can return to the school campus for those who have been in close contact with someone confirmed to have COVID-19, to those who have been tested and found negative for the virus (among other scenarios).
COVID Case Will Not Shut Down the School
However, in places like Porter County, even if there is a confirmed case of COVID-19 after the school semester begins, this will not close down the school campus. As Porter County Health Officer Maria Stamp, M.D., explains, “[t]he Health Department will recommend entire schools or classrooms close only if there is significant transmission within a given school or community, or if close contacts cannot be well identified.”
- Read Dr. Stamp’s entire public notice dated July 31, 2020, and entitled “In-Class Education in the Setting of Rising COVID19 Cases,” here.
Schools in Indiana are reopening with full awareness that there will be COVID-19 cases among the students, staff, and faculty during the upcoming school year.
As Interim Superintendent of Schools for Valparaiso Community Schools Michael J. Berta, Jr., explains:
“The reality is, we will most likely have cases of COVID-19 occur in our schools. School personnel will work quickly to identify impacted people and deploy actions including quarantine and remote learning. Some extracurricular and other activities may need to be paused from time to time to address exposure. A class, school, and even the district may need to close in order to mitigate COVID-19 transmission.
“Remote learning may be required of some or many students should the Department of Health determine it necessary. We can increase the probability of keeping our schools open for learning and keeping one another healthy and safe when we all deploy the actions in the Return to Learn Plan and adhere to the advice of the Health Department.”
Indiana Governor Holcomb Seeks Federal Immunity for School Districts from COVID Injury Lawsuits
Meanwhile, Indiana Governor Eric Holcomb, in a July 21, 2020, letter to Congress also signed by another 20 state governors, has requested new federal legislation be passed that provides personal injury liability immunity for school districts so they cannot be held financially accountable for any dereliction of duty that results in the serious illness or death of a student, teacher, or staff member.
Indiana’s governor has asked for federal laws to be passed that will protect school districts from “…legal risk when following the appropriate standard of care to protect employees, customers and students.” Some cases would be allowed to proceed, but only if the injured party (e.g., student, teacher, parent, staff member) can demonstrate the school authorities’ “gross negligence, misconduct or recklessness.”
For more, read “Holcomb, GOP Governors Ask Congress to Protect Businesses, Schools from COVID-19 Lawsuits,” written by Dan Carden and published in the NWI Times on August 15, 2020.
Indiana School Liability for Coronavirus Injury and COVID-19 Harm: Entrusting Our Children to Their Care
Traditionally, Hoosier parents have entrusted their children to teachers and other school district employees each and every school day. That trust has not changed because of the unprecedented Coronavirus Pandemic.
As we send our kids off to class, we expect them to be protected and kept safe from all kinds of harm and injury: from concussions on the sports field to active shooters to exposure to illness.
Indiana schools have a tremendous responsibility to watch out for these vulnerable students alongside their duties to protect teachers, staff, and employees while on the job.
In fact, this duty is so high that a legal term exists, “in loco parentis,” where the school district is considered to act in place of the parents to keep our kids safe while in the district’s custody and control.
When someone is injured at school, it is the right of the Indiana parent to investigate the circumstances and seek to hold the school district accountable for negligent acts that have caused harm. This is also true for any teacher, staff member, or employee who is harmed on a school campus because of the failures in duty by the school authorities.
Going to school is important for our children, but Indiana schools are being opened with the known risk of COVID exposure in 2020. Please be careful out there!
