Brandon Bryer, Associate Member, University of Cincinnati Law Review
The spread of COVID-19 has upended nearly every aspect of daily life. As millions of students have returned to college campuses across the United States, a welcome once filled with excitement and anticipation was riddled with uncertainty. While the health and safety of its students is paramount, colleges and universities are facing another invisible threat – legal liability. This additional threat has prompted college and university administrators to turn to state and federal legislators to swiftly pass liability protections against COVID-19 lawsuits. Colleges and universities face numerous liabilities including class action lawsuits just for inviting students back to campus, compensation of student health costs or loss of wages, or even wrongful death. Despite a push by Congressional Republicans, the federal government has yet to act. However, numerous states have already passed or are actively debating COVID-19 liability shields for colleges, universities, and businesses alike. This article analyzes the growing patchwork of COVID-19 liability statutes and ultimately argues that states should act quickly to enact liability protections for colleges and universities.
II. Current COVID-19 Liability Shields
Roughly twenty states have enacted or proposed some form of liability protection for both public and private entities including colleges and universities. While the approaches vary state to state, four aspects are common to most statutes: (1) barring ordinary negligence claims, (2) requiring a higher burden of proof, (3) limiting damages, and (4) applying liability protections retroactively. First, every statute prevents a COVID-19-harmed plaintiff from suing for ordinary civil negligence – a baseline legal standard that imposes liability against an entity for failing to exercise reasonable care. Instead, COVID-19 statutes only permit liability when a college or university engages in sufficiently more culpable conduct. For example, Ohio’s statute requires that its higher education institutions commit willful, wanton, or reckless misconduct in order to be held liable for COVID-19 related damages. In Ohio, willful misconduct is purposefully doing a wrongful act with knowledge the act could harm someone and reckless conduct is consciously disregarding an unreasonable risk of harm to another.
Similarly, Utah’s statute provides an absolute immunity from civil liability unless a college or university engages in willful misconduct, reckless infliction of harm, or intentional infliction of harm. In Utah, reckless infliction of harm requires an actor to intentionally perform an act so unreasonable and dangerous that he knows it is highly probable harm will result. Demonstrating willful or reckless conduct is a “substantially greater” burden for a plaintiff to prove as opposed to ordinary negligence where the defendant could have lacked intent entirely.
Therefore, these terms mean exactly what they imply. If a student harmed by COVID-19 seeks redress, they must demonstrate that the college or university acted far beyond the ordinary negligence bar and took purposeful actions in ignorance of clear risks. For a plaintiff to even sue under a COVID-19 liability shield, a college or university would have to blatantly disregard state and federal COVID-19 regulations. For example, it is possible that if a college or university does not have a mandatory facemask policy or fails to implement proper social distancing guidelines, it might constitute willful conduct. A university could face liability for reckless conduct if it knew of a specific COVID-19 outbreak on campus but nevertheless held a crowded event where masks were not required. In any event, colleges and universities are unlikely to engage in such conduct, but COVID-19 shields ensure only institutions in blatant disregard will face liability.
The second common characteristic of COVID-19 liability statutes is that plaintiffs must overcome a relatively higher burden of proof at trial. To prevail on a standard negligence claim, a plaintiff need only prove the elements by a preponderance of the evidence – that the existence of a fact is more likely than not. However, many COVID-19 liability statutes require plaintiffs to carry their burden of proof beyond clear and convincing evidence. Significantly higher than the preponderance standard, the clear and convincing standard is only satisfied if the evidence leads to a “firm belief or conviction the allegations are true.”
If a plaintiff can successfully identify willful or reckless conduct and can prove their case beyond clear and convincing evidence, a third commonality of statutes is to limit recoverable damages. For example, Alabama’s Governor Proclamation only allows actual, economic compensatory damages and completely bars an award of punitive damages unless for wrongful death. Fourth, COVID-19 statutes apply retroactively, protecting any conduct having occurred since the state’s Governor officially declared a state of emergency. Some statutes have designated a specific date in 2021 when the liability shield will lapse, but other states have indefinite liability protections until the state’s emergency order is officially lifted.
Because COVID-19 lawsuits are unlikely to prevail on the merits, the mere assurance that costly lawsuits will not be filed against colleges and universities far outweighs any negative characteristics of liability shields. Since March of 2020, there have been approximately 5,480 COVID-19 related complaints filed in the United States. This number has been steadily climbing with roughly 500 new suits per month. Of those 5,480 complaints, 270 are against educational institutions. Of those 270 complaints, 54 cases are for claims relating to negligence, personal injury, or other causes of action. To some, 270 lawsuits against colleges and universities is minimal, but to others, it is 270 too many. While it can be fervently debated whether liability shields are working or not, current COVID-19 liability protections can be justified for three primary reasons, regardless of their effectiveness.
First, a plaintiff is unlikely to succeed on their claims even under the ordinary negligence standard in a state without COVID-19 liability protections. To prevail on an ordinary negligence claim, a plaintiff must demonstrate that a university had a duty of care to keep its students safe, it breached that duty, such breach resulted in damages, and the university itself was the cause of those damages. This final causation requirement is likely fatal to many plaintiff’s claims. As asymptomatic carriers of COVID-19 are ever present and contract tracing is an imperfect science, it is very unlikely a plaintiff could precisely pinpoint the exact moment they contracted the virus. It becomes even more unlikely the plaintiff could prove by a preponderance of the evidence that their contraction of COVID-19 was caused by the university.
Even assuming the plaintiff could demonstrate the university was the cause of their contraction, existing affirmative defenses are further hurdles a plaintiff would be unlikely to surpass. For the fall 2020 semester, colleges and universities have been entering into private contracts with students that have an assumption of the risk provision. If sued by a student, a college or university can argue there was an express or primary assumption of the risk which completely negates the student’s negligence claim in most states. Further, colleges and universities can argue the student was comparatively or contributorily negligent, meaning the student’s own actions contributed to the harm. For example, the college and university would simply argue the student contracted the virus at an-off campus social event, at a restaurant, at a bar, or even while they were walking along the sidewalk without a mask. The consequences of comparative and contributory negligence varies, but in a majority of states, a student would be unable to recover if they were found more than fifty percent at fault for contracting the virus.
But, if a plaintiff is so unlikely to prevail on a COVID-19 lawsuit even under the ordinary negligence standard, why have liability shields at all? The answer to this question provides the second justification for COVID-19 protections – the high administrative and economic costs of American litigation. The economic burden just to defend against a lawsuit is substantial and can be especially detrimental for smaller, regional colleges and universities. Many smaller universities have just one or two attorneys acting as general counsel and massive COVID-19 liabilities would force those schools to outsource additional legal expenses at a heavy price. Institutions and individuals alike are feeling the brunt of the economic downturn induced by COVID-19. It is unreasonable to burden smaller, thinly-funded universities with the hefty administrative and financial costs of defending COVID-19 lawsuits that are unlikely to even prevail on their merits. To not provide protection would drive operating budgets further into the red and further into uncertainty. Any college or university, regardless of size or resources, will be forced to divert student tuition dollars and meaningful CARES Act funding away from educational programs and towards defending hollow COVID-19 lawsuits.
A third justification stems from the fact that campus wide COVID-19 outbreaks are perfect candidates for class action lawsuits. Class actions are notorious for generous payouts to trial attorneys while providing inadequate compensation to the class of plaintiffs who are actually harmed. COVID-19 class actions would pose a unique economic and administrative risk to smaller universities due to the unequal pressure they would feel to simply absorb losses and settle against the class of plaintiffs. In fact, many class actions or large settlements are settled simply to avoid expending additional resources and to avoid negative coverage. The result: colleges and universities may feel coercive pressure to settle a case even if they were not negligent in any way. By barring class actions and only holding colleges and universities liable for willful or reckless conduct, higher education institutions will be afforded much needed economic support and predictability.
COVID-19 liability protections are practical, fair, and necessary. The statutes are practical because student claims against their college or university are unlikely to prevail under even an ordinary negligence analysis. The statutes are fair because colleges and universities are still held to a standard of accountability because they can still be held liable for willful or reckless conduct. Even with liability protections, colleges and universities must still follow health guidelines, provide virtual learning opportunities for students, and avoid conduct that places the health and safety of their student population at risk. The statutes are necessary because liability shields provide much needed stability in times of uncertainty and much needed financial protection in a time when funds are scarce. As the future of COVID-19 liability is as unpredictable as the virus itself, liability shields should be enacted to protect colleges and universities such that maximum resources can be dedicated to their core objective – educating students. In practice, the statutes still require a university to exercise a standard of care for the health of its students, but also protects against the economic and administrative detriments of unhinged potential liability.
 Jeremy Bauer-Wolf, Colleges turn to states for coronavirus liability protection, Education Dive, https://www.educationdive.com/news/colleges-turn-to-states-for-coronavirus-liability-protection/580818/ (last visited October 15, 2020).
 Jillian Berman, Colleges are asking students to sign agreements about the dangers of COVID before returning to class – but schools insist they aren’t liability waivers, Market Watch, https://www.marketwatch.com/story/they-took-the-death-and-permanent-disability-part-out-of-there-which-is-nice-of-them-college-students-are-being-asked-to-sign-covid-19-liability-agreements-11597758794 (last visited October 15, 2020).
 Bauer-Wolf, supra.
 Angelo I. Amador, COVID-19 States Liability Protection Statutes, Restaurant Law Center, https://restaurant.org/downloads/pdfs/business/covid-19-states-liability-protection-statutes.pdf (last visited October 15, 2020).
 The states include: Alabama, Arizona, Arkansas, Georgia, Illinois, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Mississippi, New Jersey, New York, North Carolina, Ohio, Oklahoma, South Carolina, Utah, and Wyoming. Id.
 Blackmon v. Tri-Arc Food Systems, Inc., 782 S.E.2d 741, 745 (N.C. Ct. App. 2016).
 Amador, supra note 5.
 H.B. 606, 133rd Gen. Assemb. (Ohio 2020).
 Anderson v. Massillon, 983 N.E.2d 266, 273 (Ohio 2012).
 S.B. 3007, 2020 Third Special Sess. (Utah 2020).
 White v. Blackburn, 787 P.2d 1315, 1317 (Utah Ct. App. 1990).
 Anderson, 983 N.E.2d at 273.
 Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983).
 Amador, supra note 5.
 In re M.R., 870 N.W.2d 175, 178 (N.D. 2015).
 Amador, supra note 5.
 Ninth Supplemental State of Emergency: Coronavirus (COVID-19), Office of the Governor of Alabama (May 8, 2020), https://governor.alabama.gov/newsroom/2020/05/ninth-supplemental-state-of-emergency-coronavirus-covid-19/.
 E.g., H.B. 606, 133rd Gen. Assemb. (Ohio 2020); S.B. 3007, 2020 Third Special Sess. (Utah 2020).
 H.B. 606, 133rd Gen. Assemb. (Ohio 2020).
 Blackmon, 782 S.E.2d at 745.
 Notably, a plaintiff would have to prove that the college or university was both the but-for and proximate cause of their contraction of COVID-19.
 Greta Anderson, Colleges Seek Waivers From Risk-Taking Students, Inside Higher Ed, https://www.insidehighered.com/news/2020/08/03/students-asked-sign-liability-waivers-return-campus (last visited October 15, 2020).
 Ochall v. McNamer, 79 N.E.3d 1215, 1228 (Ohio Ct. App. 2016).
 McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992).
 Cost Benefit of American Litigation, Law Offices of Stimmel, Stimmel & Roeser, https://www.stimmel-law.com/en/articles/cost-benefit-american-litigation (last visited October 15, 2020).
 Lawrence White, Managing Your Campus Legal Needs: An Essential Guide to Selecting Counsel, National Association of College and University Attorneys, https://www.acenet.edu/Documents/Managing-your-Campus-Legal-Needs-An-Essential-Guide-to-Selecting-Counsel.pdf (last visited October 15, 2020).
 Senate Republicans expressly argue that CARES Act funding should not be diverted from important educational expenses to “line the pockets of the trial bar.” SAFE TO WORK Act, S.B. 4317, 116th Cong. §2(11) (2020).
 This concern is prevalent enough that Ohio’s COVID-19 liability statute entirely bars filing a class action based in whole or in part on allegations that an entity “caused exposure to, or the transmission or contraction of” COVID-19. Governor DeWine Signs Law Shielding Ohio Employers From Liability for COVID-19 Related Lawsuits, National Law Review, https://www.natlawreview.com/article/governor-dewine-signs-law-shielding-ohio-employers-liability-covid-19-related (last accessed October 15, 2020).
 Jacob Shamsian, A case against Southwest Airlines reveals the biggest problem with consumer lawsuits in America, Business Insider, https://www.businessinsider.com/everything-wrong-with-class-action-lawsuits-in-america-2015-8 (last visited October 15, 2020).
 Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 162 (3rd Cir. 2001).