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‘Litigation nightmare’ could result from school-liability lawsuits

School districts, administrators and boards throughout Wisconsin are considering a variety of liability issues as they make decisions about how to start the 2020-21 school year with cases of COVID-19 on the rise.

“I’ve been doing this for 39 years now,” said Jon Anderson, partner at Husch Blackwell’s Madison office. “It’s difficult to conceive of a more challenging time in the history of education.”

The Wisconsin Department of Public Instruction released guidance in June with reopening considerations and options for instruction. But the department has left decisions about what reopening will look like for each district to local school boards.

Anderson advised school districts in Dane County on what legal issues could come with reopening. He said tort-liability questions related to negligence and worker’s compensation claims for staff are a priority for districts. The real trouble with these types of cases is in discovering where someone contracted the virus.

“It’s going to be a litigation nightmare in terms of proving, in any particular case, who was the cause and how that translates into liability for the school district,” Anderson said.

Anderson hopes these cases will be rare. But if they do arise, he expects courts to consider whether parents had a role in choosing what school looks like for their children — whether they’re attending in-person classes full time, part time or not at all.

Before opening for in-person classes, schools also need to revisit their insurance policies to find out if they provide coverage for school directors. Anderson said directors want to be sure they won’t be held personally responsible.

Anderson believes such risks are manageable if school districts are accommodating, take steps to protect students and staff and reopen slowly.

“Acting reasonably and in conformity with recommendations from DPI and public health authorities will minimize the risks associated with reopening,” Anderson said. “And certainly, making sure the people understand that you can’t guarantee that a school will be coronavirus free.”

See related story: Experts offer advice for managing remote practices, kids’ virtual schooling

About Michaela Paukner, mpaukner@wislawjournal.com

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at mpaukner@wislawjournal.com.

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