This is a complicated question, and the answer is it depends on the scenario and the evidence. The plaintiffs would need to prove they were owed a duty of care, had an expectation of safety and were put at risk by the school’s negligence. Even if all the evidence was clear, it could still be a very difficult case to win, especially if liability waivers had been signed by parents.
Here’s something that’s almost surely happened since millions of kids across the nation have already begun returning to school:
Would the parents who unknowingly sent their child to school with COVID-19 be liable? In the vast majority of the above cases the parents likely had no idea they were putting their child’s classmates, teachers and their families at risk.
But that’s not always the case.
There have already been stories of parents knowingly sending a child diagnosed with COVID-19 to school. If their child gets a fellow student sick, and that student passes it on to a high-risk family member who then dies, can the family who knowingly sent a coronavirus-infected child to school be held liable in a wrongful death case?
There are schools around the country, including in Florida, requiring parents to sign COVID-19 waivers before their children can return to school or participate in sports. Does that waiver protect the school from any type of liability in a COVID-19 case?
Waivers can be tricky. In Florida, a liability waiver signed by a parent on behalf of a child isn’t enforceable in every scenario.
For example, if Florida parents signed a waiver for their minor child to go on a swimming field trip and the child is injured in the parking lot of the pool – not in the act of swimming – the school can likely still be held liable despite the waiver for swimming being signed. The waiver could protect the school from the specific activity listed in the waiver, but not other unrelated injuries that happened while the child was in their care.
If a waiver is specific enough about the activity it can potentially protect a school from both gross and simple negligence cases – but in Florida a waiver isn’t enforceable for intentional torts (like an assault).
It is considered assault if someone with COVID-19 coughs on another person with the intent to infect that person with the coronavirus. If a parent were to send their child with COVID-19 to school with the intent of spreading COVID-19 to their child’s classmates, that would be an intentional tort and no waiver could protect that parent from liability. The situation gets foggier if the parent sent their coronavirus-infected child to school knowing the consequences but not with a specific intent to cause harm.
Proving that type of thing might be hard. If a parent posted on social media, “I’m going to infect all your kids with COVID,” and then sent their child to school with COVID-19, there’d be ample evidence to use against them. If a parent sent their child to school and told them to wear a mask, wash their hands and not to cough on other people, it could be harder to make the case that they intentionally put other people in harm’s way.
If you want to see an example of one of these COVID-19 waivers, read through this one from Tampa’s department of Parks & Recreation. It describes in detail the risks of exposure to COVID-19 while also making sweeping generalizations about scenarios in which a person could become infected while participating in their activities.
This type of waiver can go a long way toward protecting a school or afterschool activity provider from liability because the language is clear and unequivocal about the risks involved, the specific parties the waiver pertains to and what the signer is agreeing to.
Every situation is unique, and there could be certain factors that complicate a plaintiff’s case, but signing a waiver like that will likely make it more difficult to pursue a negligence case for COVID-19 exposure.
Another factor that makes potential COVID-19 cases so difficult is establishing:
If a business or organization, including a school, is taking aggressive steps to minimize COVID-19 infection risks it can be hard to prove they breached any infection-related duty they owed you.
It’s also difficult to prove definitively that you or a loved one caught COVID-19 from the school. Establishing where a person became infected and by whom can be difficult with any illness that can take up to two weeks to diagnose.
That uncertainty, combined with waivers, could make it difficult for parents to sue schools for coronavirus-related injuries or deaths.
There are countless different ways people can contact COVID-19, and there have undoubtably been some preventable infections that were likely caused by negligence. Proving those cases isn’t easy, but that doesn’t mean it’s impossible.
Not every waiver is invincible shielding, but they can certainly provide some cover if they’re thorough enough.
If you feel like your family’s COVID-19 tragedy may have been caused by someone else’s negligence, and you think there’s evidence to prove it, you can try contacting personal injury attorneys. They may at least hear you out and help you understand whether or not you may have a case.