LEGAL
report
ARE PRINCIPALS LEGALLY LIABLE FOR THE INJURY TO OR DEATH OF A STUDENT WHO CLAIMS TO HAVE CONTRACTED COVID-19 AT SCHOOL?
A
BY DENNIS PERGRAM
natural question by principals and assistant principals (“principals”) is whether they can be held liable for the injury to or death of a student who has contracted the coronavirus while at school. This article will be limited solely to addressing potential liability of principals with respect to students and the coronavirus. At the outset, it must be remembered that it is your school board that makes the decision whether students are required to or given the option to attend school in person. While various legislation is being discussed and proposed as a result of liability concerns and the coronavirus, current Ohio law would certainly appear to address such concerns and it is doubtful that any subsequent legislation will impose greater liability for principals. Principals are in the class of individuals who have certain defenses and immunities under R.C. 2744.03, which provides in relevant part as follows: (A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability: ... (6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and 3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies: (a) The employee’s acts or omissions were manifestly outside the scope of the employee’s employment or official responsibilities; (b) The employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
40
principal navigator
(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon an employee, because that section provides for a criminal penalty, because of a general authorization in that section that an employee may sue and be sued, or because the section uses the term “shall” in a provision pertaining to an employee. ... As provided for above, simple negligence alone which typically is not done with a malicious purpose, in bad faith, or in a wanton or reckless manner will not cause the principal to lose the immunity provided for by the statute. It is not practical to try to list all principal acts or omissions which could be classified as being with a malicious purpose, in bad faith, or in a wanton or reckless manner; however, one easy example would be if a principal has been diagnosed with the coronavirus and, nonetheless, shows up at school and has an in-person meeting with a student. In my opinion, the principal’s conduct would constitute recklessness, which is one of the exceptions to immunity. Consequently, if a student then is diagnosed with coronavirus, the student may be very likely to sue the principal subject, of course, to being able to prove the student contracted the coronavirus from the principal. While there may be an issue of proof, you certainly do not want to be a party to that litigation. I often get the question, in connection with other facts or circumstances: “Can I be sued?” Unfortunately, in civil litigation, there is no requirement that there be an initial evidentiary showing of liability (except in medical malpractice cases). Therefore, even if a principal has done nothing wrong, the principal can be sued. Of course, even if a principal has a frivolous or non-meritorious lawsuit filed against them, the costs of defending such a lawsuit can be substantial. Fortunately, R.C. 2744.07(A) requires the principal’s school board to provide the principal with a defense (providing the principal with, and paying for, an attorney), subject to certain exceptions. R.C. 2744.07(A)(1) provides as follows:
