Public schools have been working hard to resume in-person instruction as the COVID-19 pandemic continues. Despite all of the planning and preparing being done in accordance with state and federal guidance, there is no guarantee that public schools can prevent any and all potential exposure to COVID-19 in school buildings or buses. They need enhanced protections during this time from frivolous or opportunistic lawsuits alleging exposure to the virus.

Recognizing that this type of liability protection should be carefully balanced, public schools are not looking to protect willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the safety of individuals.

School leaders are fearful that frivolous or opportunistic lawsuits over perceived exposure to COVID-19 lawsuits, even unsuccessful ones, will result in increased spending which could result in increased local taxes and further school budget cuts which would have a severely negative impact on the opportunities and education that students will receive.

The General Assembly is urged to definitively establish that public schools are immune from damages arising from potential COVID-19 exposure in a school setting.

Talking points:

  • School leaders need enhanced liability protections so they can effectively reopen school buildings without worrying about being financially crippled by lawsuits as long as they do their best to implement the guidelines laid out for them.
  • School districts are not asking for broad tort reform. What they need is a temporary grant of immunity for actual or potential COVID-19 exposure in the school setting, including on school district provided transportation, unless such exposure is the result of gross negligence or willful misconduct on the part of public schools or school officials.
  • School districts are provided general immunity from civil damages under the Political Subdivision Torts Claim Act. However, there are two key exceptions to this immunity, the scope of which have been expanded by recent Pennsylvania Supreme Court decisions, that have public schools concerned as in-person instruction resumes while the COVID-19 pandemic lingers. First is the real estate exception, and second is the motor vehicle exception:
    • A recent PA Supreme Court case (Brewington v. Philadelphia) has opened the possibility that school districts may not be entitled to immunity should any student, staff member, or visitor allege that they contracted COVID-19 in a school setting despite the school’s best efforts.
    • Under the motor vehicle exception, a public school would be liable for damages if an injury were caused by the negligent operation of any motor vehicle in the possession or control of the public school. In Balentine v. Chester Water Authority, the Pennsylvania Supreme Court expanded on what would be included as “operation” of a motor vehicle. In the context of COVID-19 and the resumption of transporting students, the Balentine case, combined with the approach taken by the Court in Brewington, causes significant concern for school leaders and taxpayers due to the potential for costly judgements resulting from claims of negligence in making pandemic-related decisions.
  • Further, many insurance carriers are becoming aware of the possibility that schools could be exposed to liability because of COVID-19 exposure in the school setting. As a result, they have begun to remove or exclude coverage for any claims related to COVID-19 from their insurance policies, leaving school districts and taxpayers on the hook not only for any potential liability that may arise due to the pandemic, but also for the costs of defending against such claims.
  • With the prospect of costly litigation hanging over every decision made by school boards and administrators in reopening and operating schools and school programs, legislation is needed to provide limited protections so that schools are not worrying about being financially crippled or shut down as long as they do their best to implement state and federal guidance.