Dear Legal Mailbag:
I think that we have gotten this remote learning thing down. The teachers in my building have become more or less comfortable with this new “normal,” and I am optimistic that we will finish the year on a high note. Now the big question on everyone’s mind is the return to school in the fall.
Every day I hear a new rumor. We will continue with remote learning. We will all return to school. Classes will be held on alternating days. Classes will be held in split shifts. My head is spinning. I do know that at some point we will get clear guidance on when and how to reopen school, and we will follow that guidance. But what I don’t know is whether I am going to get sued if someone gets sick. I have lived in my house for many years now, and I really like it here. I don’t want to lose my house if something goes wrong. Should I go out and get an educators’ insurance policy?
Dear Mr. Wart:
Legal Mailbag shares your concern about the uncertainty, and we all look forward to receiving clear guidance on how schools will reopen in the fall. But you have no reason to fear for your personal liability, and your house is safe without your buying additional insurance.
As Legal Mailbag has shared, liability is a concern that must be taken seriously. Once protocols for opening schools are announced, there will be a risk of liability if those protocols are not followed. Those protocols for reopening schools in the fall will establish a standard for what actions are reasonable, and liability can be imposed when someone fails to be reasonable in taking action (or in not taking action) and someone can prove that they were injured (or got sick) as a result. But to your point, any such liability would be a district liability, not a personal liability for a principal, teacher or other educator. In considering your question, Legal Mailbag will review the three “I”s: immunity, indemnity and insurance.
Immunity. Under certain circumstances, by statute or case law, there may be immunity against such claims. Local and regional school districts do not have sovereign immunity as does the State, but they may have governmental immunity for the actions they take in furtherance of the public’s business. There are exceptions (aren’t there always?), such as when students are subject to immediate harm. However, the first line of defense against a claim will be assertion of immunity from liability.
Immunity may also be addressed through Executive Order. For example, Governor Lamont’s Executive Order 7V provides in part, “any health care professional or health care facility shall be immune from suit for civil liability for any injury or death alleged to have been sustained because of the individual’s or health care facility’s acts or omissions undertaken in good faith while providing health care services in support of the State’s COVID-19 response.” It is possible that similar immunity may be extended to educators in dealing with the challenges related to reopening school.
Indemnity. This statutory protection extends to school employees as well as school board members. Connecticut General Statutes, Section 10-235, provides that school employees – administrators, teachers, paraprofessionals, secretaries, custodians, etc. – are indemnified and saved harmless from claims made against them for actions they take within the scope of their employment, as long as such actions are not wanton, reckless or malicious. This protection reflects the public policy of protecting educators as you do your important work. Moreover, this broad protection extends to payment of attorney’s fees. If a claim is made, the district, not the individual school employee, will pay the legal fees, which can be expensive.
The reopening of school will carry with it some risks. However, you need not worry about your personal liability for claims that could be made against you (or other district employees) for actions you take in good faith. This statutory protection is considered “remedial” legislation (designed to remedy a problem), and it will be construed broadly in favor of protecting you and other school employees in these difficult times.
Insurance. The final “I” is insurance, and that is not your problem. The indemnity law confers protections on educators, and it imposes obligations on school districts to indemnify their employees. School districts typically buy insurance to protect the district from unanticipated financial obligations arising from claims made against them and their employees, and their related duty to indemnify. However, the protections of the indemnity law are statutory, and they are not dependent upon whether or not the district has insurance to cover a particular claim that may be made.
With this good news, have a good summer!
Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.