The COVID-19 pandemic continues to sweep the nation and, despite a recent decline in overall infection rates in New Jersey, Gov. Murphy has not yet declared that the pandemic is under control in our state. Because the state and the world continue to develop appropriate responses to this unprecedented outbreak, school boards around the state have begun asking whether school districts can be held liable should a student or employee become infected in the school setting. The answer is a legalistic one…it depends.

When schools open for in-person instruction, whether it be full day or some type of hybrid program, the possibility exists that a student may return to school having been infected with COVID-19. This raises at least two major concerns: (1) whether the school can legally prevent that student from entering school property, and (2) if the student does enter school grounds and another student or staff member becomes infected, whether the school can be held liable where the transmission occurred in the school program.

As a starting point, we first turn to New Jersey statutes. N.J.S.A. 18A:40-7 allows the school physician or school nurse to recommend exclusion of a student from the school building when the student evidences “departure from normal health.” In addition, upon the recommendation of the school physician or school nurse who is in the building, the principal may exclude any pupil that has been exposed to a communicable disease or whose presence in the room is detrimental to the health or cleanliness of pupils in the room. Concurrent with the exclusion, the administration must notify the parents of the basis for the student’s exclusion from school.

Accordingly, school administrators certainly have the authority to remove students from the classroom based on health reasons. If a school principal does not take such action, does this mean that liability will automatically follow if other students or teachers get sick?

The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., is the statute under which any claims of negligent or reckless behavior would be filed. In essence, in order to demonstrate that the school district was negligent in failing to stop the transmission of COVID-19 to a student or teacher, that student or teacher would have to demonstrate the following: 1) the school district owes a duty of care to the student or teacher; 2) there was a breach of that duty of care; 3) there is a causal connection between the school’s conduct and the “harm” suffered by the claimant; and 4) actual damages.

In determining whether there is a duty, courts examine several factors such as the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant, the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.

While case law is developing in what could be termed the “negligent transmission” arena, we do have, as an example, an early case, Earle v. Kuklo, 26 N.J. Super. 471 (1953). In this case, the court determined that the landlord, Kuklo, had an obligation to warn tenant Earle that Kuklo had contracted tuberculosis, a communicable and sometimes deadly disease.

Because the dangers of COVID-19 are known, and boards of education have the ability to take action against those suspected of being infected, a court would most likely find that the school district has an affirmative duty to protect against the spread of the contagion. However, that is not the end of the inquiry because there must also be a breach of that duty. In determining breach, a court would review the steps the school district took to prevent or mitigate against the risk of transmission and determine whether those steps were reasonable. If the district took all reasonable steps and those steps were simply not sufficient to prevent the infection, the court would most likely find that the district did not breach any duty to the hypothetical plaintiff. However, if reasonable steps were not taken, the district could be found in breach. The difficulty here lies in determining the reasonableness of the steps taken or not and the circumstances surrounding those decisions.

This is where a school’s adherence to state and local guidelines as well as information from the Center for Disease Control and other federal sources would help mitigate any damage claims that are filed in the future. In addition, where guidance changes or even conflicts, it is important to note those changes and conflicts and document the efforts to comply with one or the other. Such a contemporaneous record of decision-making would be beneficial because, with so much information being developed in regard to this pandemic it is difficult to keep abreast, let alone make critical distinctions, where guidance varies. Such a record of decision-making would be extremely important in demonstrating the reasonableness of the school’s response, especially as conditions and recommendations change as the medical field learns more about the transmission of this virus.

Even in taking all appropriate safety precautions, it would be wise to review the district’s current insurance policies to determine whether the transmission of a contagious disease to students, staff, and others is excluded from coverage under the policy.

To prevail in a negligent transmission claim against the district, a plaintiff would have to demonstrate that the school was the only place that he or she could have come into contact with the disease, a difficult proposition to prove if the virus is community spread. However, in locations where transmission is negligible or small, proof of causation may not be as difficult. Finally, under the Tort Claims Act, a plaintiff must be able to prove damages, meaning that as a result of the breach of the duty, the plaintiff was harmed because of the district’s negligent conduct. Harm could come in the form of medical bills, lost wages, or other forms of objective loss on the part of the plaintiff.

An affirmative consideration as schools prepare to reopen is the possibility of a discrimination claim. For example, policies or practices that limit elderly teachers to certain assignments or require that they only teach remotely could lead to claims of age discrimination. Therefore, it is also important to consult with the board attorney about the provisions of the Age Discrimination in Employment Act (29 U.S.C.A. § 621 et seq.), its regulations, and related state and local law to ensure that in supporting the health and safety of employees, the district is not also violating their rights.

Similarly, if students become aware that a classmate has been infected and is then subject to teasing or other harassing conduct, the district may find itself facing an anti-bullying claim if the bullying is not promptly addressed.

So, in conclusion, the board’s obligation to ensure the safety of students is more than just a moral obligation, it is a legal obligation as well. Failure to reasonably comply could lead to legal liability for the board.

If you have any questions on this article, please feel free to contact the board attorney or the Legal and Labor Relations Department at (609) 278-5254.