As a nation looks for a way to reopen its schools and economy safely, liability issues loom large for decision-makers. No one wants to get sued if someone contracts the coronavirus on their property. The state of Louisiana responded to these concerns by enacting a law that makes it difficult to win COVID-19 lawsuits against schools.
The Bayou State has already acted to provide legal protection to government agencies, private businesses, trade shows and events. The same principles were applied to the laws meant to protect school systems—both public and private—all the way from kindergarten through college.
Proving negligence is the standard legal bar that a plaintiff must clear when filing a lawsuit against these institutions. The new law raised that bar by requiring the negligence be “grossly negligent or wanton misconduct.”
The difference is this: in a standard negligence case, the plaintiff would only need to establish that decision makers at an institution acted without taking the precautions that would normally be taken by “a reasonable and prudent person.”
Under the new and higher standard, the negligence must be so severe as to be willful or in some way intolerable beyond the pale.
An example in the field of medicine would be that a surgeon making a poor decision on where to operate would not be enough to establish negligence. The doctor might have to do something over the top, like leave their medical equipment inside the patient’s body.
The late Supreme Court Justice Oliver Wendell Holmes once memorably defined it as the difference between stumbling over a dog or kicking it.
Both sides of the debate believe they had the best interests of the students of heart. Rep. Buddy Mincey, who sponsored the bill, said, “if we don’t provide reasonable liability protections for our schools…they’re going to say ‘I’ll see you online.’”
The other side found their voice in Rep. Gary Carter, who said, “I’m just in favor of erring on the side of fighting for our children. I think this legislation reduces the protection of our children for the benefit of our schools.”
The debate illustrates the fears and resulting passions that are behind this conversation in all sectors of society.
On the one hand, there is a real fear that students and at-risk teachers may contract COVID-19 if they return to school, an environment where social distancing and enforcement of masks can be challenging.
On the other hand, there is a fear that restricting classes to online will highlight economic divisions in society—parents who can either work from home and give their kids access to Wi-Fi will have a distinct advantage over those who cannot.
Where the middle point between these concerns is continues to be studied. The results in Louisiana will surely be observed across the nation.
