Legal Report

ARE PRINCIPALS LEGALLY LIABLE FOR THE INJURY TO OR DEATH OF A STUDENT WHO CLAIMS TO HAVE CONTRACTED COVID-19 AT SCHOOL?

BY DENNIS PERGRAM

Anatural 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; (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:

(1) Except as otherwise provided in division (A)(2) of this section, a political subdivision shall provide for the defense of an employee, in any state or federal court, in any civil action or proceeding which contains an allegation for damages for injury, death, or loss to person or property caused by an act or omission of the employee in connection with a governmental or proprietary function. Amounts expended by a political subdivision in the defense of its employees shall be from funds appropriated for this purpose or from proceeds of insurance.

The exceptions where a school board does not have to provide for the principal’s defense are: (1) the principal was not acting in good faith; (2) the principal was acting manifestly outside of his/ her employment or official responsibilities; (3) the principal is an employee of a regional council of governments and is also not an employee of the board that is a member of the council; or (4) the alleged act or omission, if proven, would constitute a violation of Chapter 102 (Ethics) or Chapter 2921 (Crimes) of the Revised Code.

Another fair question is what if, notwithstanding the immunity provided for under R.C. 2744.07(A), the legal system malfunctions and the principal is found liable and has a judgment issued against him/her? Fortunately, R.C. 2744.07 requires the school board to indemnify the principal, subject to certain exceptions. R.C. 2744.07(B)(1) provides as follows:

(1) Except as otherwise provided in division (B) (2) of this section, a political subdivision shall indemnify and hold harmless an employee in the amount of any judgment, other than a judgment for punitive or exemplary damages, that is obtained against the employee in a state or federal court or as a result of a law of a foreign jurisdiction and that is for damages for injury, death, or loss to person or property caused by an act or omission in connection with a governmental or proprietary function.

The exceptions to when a school board must indemnify are the same exceptions to the duty to defend set forth above.

WBNS 10TV in Columbus has recently reported that it reached out to certain central Ohio school districts and discovered that the districts have not required, or do not intend to require, parents to sign a waiver for their children to attend in-person classes but have or will require waivers for extra-curricular activities. In my opinion, the liability waiver does not provide the principal with any immunity not already enjoyed under R.C. 2744.03 and will not protect against actions or omissions that are done with a malicious purpose, in bad faith, or in a wanton and reckless manner.

In summary, the coronavirus has come about unexpectedly and while specific legislation may be passed regarding liabilities, the current law in effect provides principals with certain defenses and immunities and school board obligations to provide the principals with a defense and indemnification subject to the exceptions mentioned above. Most likely, any new legislation will not lessen the protections already in place for principals.

Dennis Pergram, legal counsel to OAESA, is a partner in the law firm of Manos, Martin & Pergram Co., LPA. He is a former chairperson of the Ohio State Bar Association School Law Committee and has practiced school law for over 30 years.

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