Would school districts be legally liable for athletes contracting covid-19?

By: Chris Harlan
Tuesday, August 25, 2020 | 12:20 PM

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If a school district lets students play sports and one contracts covid-19 with complications, could the school be held legally responsible?

Unlikely, says attorney Larry Kelly, a multi-sport coach in the WPIAL who has practiced personal-injury law for 37 years. Kelly studied the question and points to the governmental immunity statute as protection for school districts facing covid-19 liability claims.

“In my opinion, it’s pretty clear the statute would preclude any recovery from a school district — with one exception,” he said. “There is an exception if the district’s action constitutes willful misconduct.”

But that’s a difficult standard to prove.

“That’s a high bar to cross to show that their behavior is reckless or willful,” he said. “In most circumstances, it is my opinion that the school district will be immune from suit.

“You’d have to prove they were willfully acting, and willful misconduct is really, really high,” he added. “It’s almost like you’re intending someone to get hurt. That’s going to be a tough prove.”

Legal liability has become a key debate as the PIAA pushes forward with plans to allow fall sports to be played during a pandemic. So far without success, the PIAA has asked Gov. Tom Wolf’s administration to provide liability coverage for schools, to protect them from potential lawsuits.

The PIAA provides catastrophic insurance to its members, but the PIAA has said that policy doesn’t cover communicable diseases. Adding covid-19 coverage appears to be cost prohibitive, PIAA executive director Bob Lombardi said.

School districts are shielded under the governmental immunity statute, but the PIAA likely is not, Kelly said. He points to concussion-related lawsuits filed against the PIAA in recent years.

Those lawsuits questioned whether the PIAA had proper protocols and regulations in place that could have prevented concussions.

“They are not a state agency,” Kelly said. “They’re a private agency, so therefore they are not afforded the same protections.”

Yet, as a nonprofit, there are some limited protections under the law afforded the PIAA.

“If you’re a not-for-profit organization, and they claim to be and they are listed as such, then you have to show more than ordinary to hold them liable for injuries,” Kelly said.

But again, like with the schools, there’s an exception for willful misconduct.

“That higher standard does not apply if the agency acted or did not act when they knew or should have known that such act or omission created a substantial risk of harm to the others,” he said.

The PIAA board voted Friday to let fall sports start as scheduled. Heat acclimatization for football began Monday. But when the PIAA voted to move forward, it left the responsibility on each school district to decide whether it should play.

So districts must weigh their risks.

“There are no certainties in law,” Kelly said.

It didn’t help schools that Wolf publicly called for youth sports to be delayed until January, and the state departments of education and health both supported his strong recommendation in writing. That could be used by an attorney trying to build a case that school districts were reckless by playing, Kelly said.

“We certainly agree that the strong recommendation certainly put schools on their heels,” PIAA associate executive director Melissa Mertz said last week. “They have sovereign immunity, but they feel, if they step outside of the governor’s recommendation, are they still protected?”

However, Mertz notes the governor’s guidance was only a recommendation. Wolf had the ability to make that a mandate but declined. The PIAA and some state lawmakers have argued his recommendation isn’t based on relevant data, putting the guidance’s validity in question.

“Ultimately, it’s going to come down to the schools’ decision,” Mertz said.

Kelly is familiar with the high school sports landscape as a boys basketball assistant on New Castle coach Ralph Blundo’s staff and the head baseball coach at Shenango. Besides the laws protecting school districts, he also highlights the covid-19 waivers school districts are requiring.

Those do offer protection, he said.

“Waivers of liability in Pennsylvania are valid as long as it is clear what you are waiving,” Kelly said, “and it’s clear you are waiving your liability.”

While the schools’ actions likely don’t meet the legal proof needed for willful misconduct, Kelly sees inconsistencies in the PIAA sport-specific guidelines. In fact, he questions whether it’s safe to play football in the fall.

“It says if you are a golfer, I can’t use your pencil. If you’re a tennis player, I cannot serve with my opponent’s tennis balls,” Kelly said. “So I can’t touch my opponent’s pencil, I can’t use my opponent’s tennis balls, but you’re going to let (students) line up for 60 plays and bang heads and sweat on each other and spit on each other inadvertently.

“In my mind, that’s just too much.”

The governmental immunity statute doesn’t protect schools from all legal action. There are exceptions for vehicle liability, sexual abuse or the care, custody and control of personal property, among other exemptions, he said, but a sports-related covid-19 suit seems unlikely to succeed.

“Do I think there will be lawsuits? Hey, there are people that may file lawsuits,” Kelly said. “That could happen. Do I think there are protections afforded to the school districts that will protect them? I absolutely do.”

Chris Harlan is a TribLive reporter covering sports. He joined the Trib in 2009 after seven years as a reporter at the Beaver County Times. He can be reached at charlan@triblive.com.

Tags: New Castle, Shenango