[Podcast] The issue of masks and other COVID-19 precaution strategies in schools has become contentious, sparking a firestorm of lawsuits. Special guest Attorney Lisa Linney helps us understand behind-the-scenes strategizing when a parent sues a school district over insufficient virus mitigation protocols. What is the strongest argument for the plaintiff? Beyond the parent and the school district, will other “responsible third parties” be at fault? What must happen in the hours after a school district has been served a lawsuit? DISCLAIMER. Attorney Lisa Linney will not be giving legal advice during this episode. Please contact your legal counsel for guidance on specific school safety legal matters.
DIRECT LINK to MP3 of this Episode: https://tinyurl.com/SDP157-AUDIO
ABOUT LISA LINNEY. Lisa Linney is an attorney at Murphy Legal in Texas. Her focus is motion practice and appellate law. Lisa’s appellate practice begins before a case even goes to trial. She participates in trial preparation by researching thorny issues and crafting motions in support of her clients’ positions and to preserve the trial record for any potential appeal. Lisa also handles appellate work, including briefing and oral argument. She is a graduate of Northwestern University Pritzker School of Law.
WHAT IS DECLARATORY RELIEF? Lisa notes that the lawsuits are between the parent and the school district. Declaratory relief would be , for example, the court interpreting the contract to determine rights of parents and the school without ordering action or awarding damages. In other words, the court has the ability to compel the school to implement a mask mandate or specific pandemic mitigation protocols. However, such a ruling would not extend to other school districts in the state. But, when similar parent-filed lawsuits against multiple districts catch the attention of the media and state legislators, there might be pressure for either the state department of health or state department of instruction to take a firm position, or in the rare chance, issue a decree on the matters.
WHAT IS INJUNCTIVE RELIEF? The court may issue a sanction (injunction) regarding a school district’s pandemic mitigation practices. For example, if a school had a “masks optional” policy, the court might sanction the school district to remove the “optional” from its protocol. In Wisconsin, parent lawsuits against school districts claiming that “The school board and the superintendent are not providing a safe environment” are seeking declaratory or injunctive relief. In other words, the intent of the lawsuits is to change policy and protocol – most likely to require masks in schools.
BURDEN OF PROOF. Lisa notes that the burden of proof in these lawsuits will be with the parent. As the plaintiff gather’s evidence (discovery) it’s important to examine how a school district engaged in due diligence and debated pandemic mitigation protocols. The board of education is empowered with the responsibility of creating policies and voting on actions. When looking at the school’s decision to mitigate effects of COVID-19 in the school setting, something more could have always been done. The question is, what is reasonable? Anything publicly available from the county health department, local hospitals, CDC, FDA, NIH, WHO should be considered. Demonstrate due diligence in obtaining and weighing information from a variety of reputable sources – and government sources will be perceived as credible. Then boil down to more specific data as to what information applies to children. If the school district engaged in these steps, it’s going to be difficult for a parent to prevail in a lawsuit.
WHAT IS NEGLIGENCE? Attorney Linney explained the three elements of negligence. (First) Defendant owned a legal duty; (Second) Defendant breached that duty; and (Third) Breach caused the injury. The plaintiff (parent) has to show that the defendant owed a legal duty to the plaintiff and the defendant breached that duty, and that breach was the proximate cause of the plaintiff’s injury. Attorney Linney felt it would be a great technical challenge to prove the student contracted COVID at school and that it was a result of insufficient mitigation efforts by the school. Proximate cause will be the problem in the courts – how do you show the child got COVID. Where else has the child been, and the people that the children live and interact with outside of school?
This is episode 157 of The Safety Doc Podcast recorded on 11-01-2021 and published on 11-02-2021.
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