On November 19, 2020, the Pennsylvania Senate amended and passed legislation requested by the Pennsylvania School Boards Association (“PSBA”) to provide COVID-19 liability protections for schools.
The amendment, House Bill 1737 (“HB1737”), would provide school entities with limited pandemic liability protections if they followed, or believed with good faith to have followed, CDC and state health guidelines for mitigation efforts.
More specifically, absent a showing by clear and convincing evidence of gross negligence, recklessness, willful misconduct or intentional infliction of harm, a school entity would not be civilly liable for damages or personal injuries relating to an actual or alleged exposure to COVID-19.
The very next day, the House of Representatives approved the proposed legislation. Ten days later, on November 30, 2020, Governor Wolf vetoed HB 1737, stating that it would undermine COVID-19 mitigation efforts and endanger the public health by enacting overly broad immunity protections from civil liability due to the pandemic.
Governor Wolf emphasized that he supported and provided protections against liability for emergency and disaster service activities taken by health care practitioners under his May 6, 2020 Order, but HB 1737 would expand those protections to a multitude of other entities. Protecting these entities from a liability “in such a broad fashion”, Governor Wolf explained, “would only invite the potential for carelessness and disregard for public safety.”
What Does This Mean for Schools
As a general rule, school actors are already immune from tort claims under theories of sovereign immunity and “state-created danger” doctrines. However, the issue of school liability has been tested greatly during this pandemic. Schools have a duty to protect the health and safety of their students and staff through rigorous compliance with public health orders. Federal, state, and local health agencies continue to develop evidence-based guidance as to how infectious diseases, such as COVID-19, can be mitigated in the most efficient and effective manner.
Schools should continue to implement and adjust policies and plans to adhere to both agency guidance and mandated orders.
Governor Wolf’s veto made clear that Pennsylvania would not be providing additional protections to schools for noncompliance or carelessness; in order to reduce liability, schools must exercise active and continuous enforcement of COVID-19 school safety standards set by the CDC and Pennsylvania Department of Health.
Bottom Line
While special legislation granting specific immunity for schools for COVID related claims would be a welcome additional level of liability protection, the current immunities already enjoyed by public schools should provide substantial legal protection for tort claims. Although it is possible to conceive of scenarios that could make out a federal claim under a state created danger theory, the underlying facts would have to be so outrageous as to “shock the conscience” of the Court. That standard would likely require a gross disregard of DOH (CDC) guidelines or a substantial Gubernatorial executive order. School Districts operating in good faith in compliance with governmental guidelines should have little reason to worry.
Of course, no one can control suits recklessly filed. Schools should be sure to consult their legal counsel to assess their degree of legal risk.
If you have a question, please contact your legal counsel or one of the Education attorneys at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.