Education Week - September 9, 2020 - 14

Schools May Get Sued Over COVID-19.
Seven Things to Know About Managing That Risk
By Stephen Sawchuk
As school begins in earnest, districts
are struggling to get their arms around an
elusive but potentially costly challenge: risk
management in the age of coronavirus.
Most if not all districts buy general liability
insurance, either self-insurance through a
traditional insurance company, or through a
pooled plan open-managed by representatives
of participating districts.
Even before COVID-19, some of these liability
policies excluded communicable diseases
from coverages. In other cases, insurers have
notified districts just in the past few months that
they will not cover claims stemming from the
pandemic-sometimes because they too could
not secure reinsurance to cover potential claims.
That means that many districts are potentially
on their own to cover legal costs and damages
stemming from a civil lawsuit from a parent or
student alleging that they contracted COVID19, due to a district's failure to protect them
against exposure to infection.
There is little existing guidance about how
districts should prepare. That's making some
districts' chief financial officers worry they could
be one liability lawsuit away from bankruptcy.
"I'm extremely worried," said Sharie Lewis,
the director of business and operations at
the Parkrose public schools in Portland, Ore.
"When someone dies, you can't in any way
soothe their pain, but historically, one way
people have tried to soothe their pain is through
financial recourse, and that is lawsuits. School
districts aren't prepared anywhere in the
country to handle that kind of loss."
Though largely missing from mainstream
news coverage, liability remains an issue of
significant uncertainty for school districts that's
certain to factor into their decisions about
whether or not to reopen for in-person learning,
even on a partial basis.
"It is unchartered territory. Nobody knows
what the full amount of risk is," noted Chris
Thomas, the general counsel for the Arizona
School Boards Association.
Despite the uncertainties, there are some key
insights emerging about school districts' liability
in the pandemic and how to protect themselves.
Here are seven things to know:

1 ] The main challenge: The "standard
of care" continues to shift.
The basic issue about COVID-19 liability
turns on whether districts have met their duty to
provide a "standard of care"-the steps districts
are reasonably expected to take to ensure the
health and safety of students and others who
enter school grounds.
Failure to meet that standard means a
district could be sued for being negligent or
even reckless. The problem, said Thomas of
the Arizona School Boards Association, is that
what constitutes the standard of care regarding
COVID-19 keeps shifting as research and public
health recommendations evolve.
"We've learned so much over the course of the
last five months of how the virus is transmitted
and what's effective in terms of avoiding
transmission, and the guidance has changed
over time," he said. "What may seem today like
due diligence to make sure it's as safe as it can
be, by the time it gets to a jury, the standard may
be different."

Erin Edgerton/The Daily Progress via AP

Students wear masks
and sit with desks distant
during the first day of
school last month
at Moss-Nuckols
Elementary School
in Louisa County, Va.

What may seem
today like due
diligence to
make sure
[school] is as
safe as it can be,
by the time
it gets to a jury,
the standard
may be
different.
CHRIS THOMAS
General counsel for the
Arizona School Boards
Association

14 | EDUCATION WEEK | September 9, 2020 | www.edweek.org

2 ] Civil claims related to COVID-19
will probably be hard to prove.
But they could still be expensive.
Legal experts say that actually proving that a
student contracted COVID-19 at school due to
a school's negligence or failure to ensure proper
health protocols will probably pose significant
challenges given COVID-19's community
spread.
"In the realm of suing a district because your
child contracts coronavirus, it's going to be
difficult to prove those claims," said Morgan
M. Masters, an associate at Albeit Weiker LLP,
a Columbus, Ohio-based law firm that offers
comprehensive legal services to students and
educators. "Because you're going to have to
show causation and proving where your child
contracted it may not be easy."
But that's not where most costs are likely to
come from. Districts will have to pay the legal
fees associated with defending lawsuits-even
those unlikely to succeed-if their general
liability insurance refuses to cover pandemicrelated claims.

3] States already offer some
immunity defenses for districts.
But it's not clear how they apply to
COVID-19 claims.
By the mid-20th century, most, if not all, states
had passed laws defining when an individual
can sue a government entity and when the
government can claim immunity from those
lawsuits. Some of those laws could cover
COVID-19-related civil claims.
The Oklahoma State School Boards
Association, for example, points to an exemption
in its state laws that prevents liability claims
against public employees due to "acts or
omissions done in conformance with then
current recognized standards." Those standards

could be interpreted to include local and
national health guidelines, said Julie Miller, the
general counsel for the association.
"As long as our schools and other entities are
following CDC guidelines and best practices,
they should still be protected," she said.
A minority of states have laws that appear to
offer significant protection to districts. That's the
case in Illinois, which offers immunity from most
cases of ordinary negligence unless a district
employee engaged in "willful and wanton
misconduct."
The line dividing ordinary negligence from
recklessness in a pandemic, though, is not
always clear, and has not yet been tested
extensively in civil courts.
In addition, some states' immunity laws
aren't as specific as others. Arizona's statutes,
for example, offer fewer exemptions for local
governments than the laws in Oklahoma and
Illinois.
In the spring, Arizona lawmakers considered
a bill that would have restricted COVID-19 civil
claims only to instances of "gross negligence"
and raised the burden of proof to "clear and
convincing evidence" from the less-stringent
standard of a "preponderance of the evidence,"
but it was not signed into law.

4 ] Some new liability policies
are emerging but are untested.
Insurers are starting to respond to some of the
liability concerns, and some of them are offering
additional policies or riders to extend liability
coverage for coronavirus-related claims.
In early August, for example, the Arizona
Risk and Retention Trust-a self-insured pool
governed by the nearly 250 Arizona school
districts that participate-announced that it
would offer an additional policy related to
COVID-19 claims.
The policy does set limits on the coverage,

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Education Week - September 9, 2020

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