As New Jersey schools plan for the 2020-2021 school year, health and safety is clearly a top priority. At the same time, districts must also be mindful of their potential liability in connection with COVID-19.

The New Jersey Legislature is considering a bill that would provide immunity for school districts that act in “good faith” to comply with all applicable health and safety protocols. However, its passage is uncertain. Accordingly, school districts should take steps to assess their potential legal liability and mitigate those risks whenever possible.

Negligent Transmission Claims

Just like businesses and other entities that are open to the public, schools could face lawsuits if someone contracts COVID-19 on their premises. While the New Jersey Tort Claims Liability Act (TCA) provides some safeguards, it does not provide complete immunity to damages claims. School districts could still face suits alleging that they were negligent in failing to stop the transmission of COVID-19 to a student or teacher. Of course, to be successful, plaintiff must establish that:

  1. The school district owes him or her a duty;
  2. There was a breach of that duty;
  3. There is a causal connection between the school district’s conduct and the harm incurred to the plaintiff; and
  4. Damages to the plaintiff.

In the context of COVID-19, a court could arguably find that given the well-known risks of COVID-19, schools have an affirmative duty to take steps to limit the transmission of the virus. However, to be successful, plaintiffs would still have to show that a school district’s COVID-19 response plan was unreasonable, i.e. failed to comply with guidance issued by the New Jersey Department of Education, New Jersey Department of Health, Centers for Disease Control and Prevention, or other authority.  In addition, plaintiffs would also have to provide evidence that they contracted the virus while at school, which could prove difficult if New Jersey experiences widespread community transmission.

School District Immunity Bill

Legislation currently under consideration in the New Jersey Assembly would provide immunity to school districts, nonpublic schools, and employees for damages resulting from COVID-19. Assembly Bill 4426 specifically grants immunity in any civil action for an act of commission or omission resulting in damages arising from a person’s exposure to the COVID-19 virus, a related viral strain, or a disease caused by either one, provided that the school district or nonpublic school, and its employees, agents, representatives, or designees:

  • Act in good faith to comply with or exceed all applicable public and personal health and safety measures to prevent or mitigate a person’s exposure to the COVID-19 virus, a related viral strain, or a disease caused by either one; and
  • Those measures are based on guidance, regulations, rules, and administrative orders promulgated by federal, State, or local departments, divisions, commissions, boards, bureaus, agencies, or officials, as well as applicable Executive Orders or portions of those orders issued by the Governor.

Notably, the proposed legislation does not provide blanket protection. AB 4426 “does not grant immunity to any school district, nonpublic school, or person causing damage by his willful, wanton, or grossly negligent acts of commission or omission.” If signed into law, the bill would take effect immediately, and apply retroactively to March 9, 2020, the date the Public Health Emergency and State of Emergency was declared under Executive Order 103.

Key Takeaway

While Assembly Bill 4426 would provide liability protection for New Jersey school districts, the legislation is still in its infancy. It is currently pending before the Assembly Education Committee, and companion legislation has not been introduced in the Senate.

New Jersey schools should continue to take steps to implement their school reopening plans in compliance with all state and federal guidance. At the same time, it is also advisable to contact your insurance provider to determine what coverage may be available should COVID-19 transmission occur in the school setting.

As school districts work to navigate the so-called “road back,” staying on top of regulatory, legislative, and other legal developments is critical. Should you need assistance, the attorneys of Scarinci Hollenbeck are here to provide much-needed guidance every step of the way.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Ivan Tukhtin, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.