Suppose you are a university president conducting a meeting in your office in late 2019. Your assistant interrupts with an urgent call from the chief of your campus police department. The chief tells you that a grad student has discovered a canister of what appears to be poisonous gas, connected to a detonator, in a laboratory building in the middle of campus. She says that the detonator is believed to be “live,” that she’s already ordered that the laboratory building be evacuated, and a special police tactical unit is en route to the scene.
Much of what you and your institution do next will be the product of the weeks of deliberation that went into creating your campus safety policy, informed by federal law and regulations and public safety principles. And among the first decisions will be whether to initiate the campus warning system, alerting the entire campus and surrounding community of the threat through sirens and text messages. In the age of campus active shooter events, your organization will have prepared for such an event.
Fast forward to September 2020, and imagine a situation where these canisters are being discovered planted by unknown persons in buildings on your campus every few days, though some turn out to be empty, and often those that are filled with gas and connected to detonators can be disposed of without wreaking immediate, visible damage. In the few instances where the canisters have detonated, the gas released has sickened those exposed. Though the symptoms are severe, no one has died — so far. Your campus community has grown weary of living with frequent interruptions to evacuate and shelter while the canisters are safely removed. People have become fatalistic, adopting the attitude that if they are meant to be harmed, so be it. A group of faculty and staff have begun to protest the required searches campus police have implemented for anyone seeking to enter a campus building. Some argue that because so many of the canisters don’t cause harm, the disruption caused by implementing the campus emergency warning system is not warranted. Some have begun to ignore the warnings. Policies and procedures designed to address isolated and discreet emergencies seem inadequate for this series of recurring events.
COVID-19: The Real Threat
This seemingly far-fetched scenario is, in truth, similar to patterns that may develop on campuses nationwide as institutions of higher education (IHEs) reopen their campuses to students, faculty and staff in the midst of the COVID-19 pandemic. We know that, even with policies and procedures in place to implement social distancing, detect instances of COVID-19 infection and isolate and quarantine affected members of the community, where so much depends on voluntary community compliance and on rapid and accurate testing and contact tracing, campus-related “hot spots” will develop.
The Clery Act: Guidance for Issuing Warnings
In this environment, what obligation does the IHE have to warn community members of a new occurrence of COVID-19 infection? In the example of the isolated gas canister event, the IHE’s response would, in the first instance, be guided by compliance with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (known as the Clery Act), a federal statute imposing recordkeeping and notification requirements on institutions of higher learning in regard principally to campus crime. Among other provisions, the Clery Act requires a university to issue a “timely warning” to the campus community when a significant emergency or a dangerous situation on the campus involves an immediate threat to the health or safety of students or employees.
The Clery Act is administered by U.S. Department of Education, which has long considered an outbreak of serious illness to be an example of a situation warranting a timely warning. In April 2020, the department issued guidance that COVID-19 constitutes a “serious illness,” thus requiring timely warning. However, the department “does not interpret the statutory language as requiring institutions to give regular, on-going updates on COVID-19 or to proactively identify positive COVID-19 cases within the campus community.” Instead, the department advises that:
An institution may satisfy the emergency notification requirements of the Clery Act … as follows:
(1) provide students and employees a single notification through the regular means of communicating emergency notifications informing them about COVID-19 and necessary health and safety precautions, as well as encouraging them to obtain information from health care providers, state health authorities, and the CDC’s COVID-19 website; or
(2) create a banner at the top of the institution’s homepage containing that same information, including a statement about the global pandemic and a link to the CDC’s website.
Some commentators suggest that colleges and universities may need to issue follow-up notices to the campus community where they develop a “hot spot.” While thus far the department has not modified its guidance to impose such a requirement, with the resumption of fall semester underway on many campuses, we are seeing institutions issue Clery warnings when a sufficient number of infections is detected in a specific site. See, for example, https://alertcarolina.unc.edu.
Clery should never be considered just a box to check in administering an institutional compliance program, but in the context of COVID-19, following the department’s guidance on meeting timely warning requirements will do very little if anything to warn the campus community of currently developing threats of infection. That is not to say that the department’s interpretation is unjustified: Clery warnings must be noticed to be effective, and the consequence of repeated warnings after every discovery of an infection would doubtless be to render Clery warnings routine and thus unheeded. But Clery, though a clear statutory mandate, is not the only legal consideration that suggests that IHEs should keep their communities up to date on the pace of COVID-19 infection and on responsive steps the institution is taking. An IHE may face substantial potential tort liability to students, faculty and staff if the IHE fails to warn them of a threat to health and safety.
Liability of Institutes for Higher Education: Torts
In the United States, liability for a tort — a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability — is determined under state law. While the basic concepts explained below may generally apply in any jurisdiction, the law in each state will have evolved through judicial interpretation and legislative action. Thus, any inquiry into whether an IHE is liable for harm suffered on its campus by employees, students or visitors must first establish what laws govern the situation, and how.
Torts are classified as intentional, negligent, or strict liability (liability for making or selling defective products). Intentional torts are wrongs that the defendant knew or should have known would result through his or her actions or omissions. Negligent torts occur when the defendant’s actions were unreasonably unsafe. Unlike intentional and negligent torts, strict liability torts do not depend on the degree of care that the defendant used. Rather, in strict liability cases, courts focus on whether a particular result or harm manifested.
Though it is conceivable that an IHE could create intentional tort liability by shirking any and all responsibility for infection control on campus, claims that one was harmed as a result of an IHE’s response to COVID-19 will most likely be fashioned as claims of negligence.
Liability of Institutes for Higher Education: Negligence Claims
In probably every state, the basic elements of a negligence claim would be that the institution owed a duty of reasonable care to the plaintiff, that the institution breached that duty, that the plaintiff was injured, and that the injury was caused by the institution’s breach of the duty of care. Beyond those basics, the idiosyncrasies of state law will determine whether an IHE’s conduct constitutes negligence. For example, negligent conduct may consist of either an act, or an omission to act when there is a duty to do so. In some states, in cases involving omissions, negligence may arise only in limited situations, such as where a “special relationship” exists between the parties. “In such relationships the plaintiff is typically in some respect particularly vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiff’s welfare.” But the plaintiff must prove that a special relationship existed, and in some states a university “should not generally be an insurer of its students’ safety, and … therefore, the student-university relationship, standing alone, does not constitute a special relationship giving rise to a duty of care.”
IHEs are also landowners and employers, and in both those roles may take on liability for harm suffered on their campuses. As employers their liability will generally be adjudicated under state workers’ compensation laws, which include statutory limitations on the amount an employee may recover — though some states also recognize a direct cause of action for intentional actions by an employer that intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct. A landowner is subject to liability for physical harm caused to his invitees [students and employees] by a condition on the land if, but only if, he
- knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
- should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
- fails to exercise reasonable care to protect them against the danger.
Restatement (Second) of Torts § 343. But it is also generally the case that a possessor of land “is generally not liable for injuries resulting from ‘known or obvious’ dangers.” Restatement (Second) of Torts § 343A. Taken together, these principles mean that in regard to COVID-19, IHEs are aware of a dangerous condition on campus and must take steps to mitigate the danger, including by putting people on notice. Conversely, if the danger — COVID-19 infection — is “known or obvious,” the IHE may be insulated from liability. Plenty of sound public health reasons support the need to inform campus communities when significant clusters of COVID-19 infection emerge, but doing so is also a sound legal risk management practice.
IHEs that design and promise a robust system for warning of COVID-19 outbreaks but fail to follow through may inadvertently create additional grounds for liability. Akin to the special relationship theory is the “undertaking” theory implicated when a defendant voluntarily “undertakes” to provide needed services to the plaintiff when otherwise she would have no obligation. The agreement may arise from a binding contract between the parties or from a gratuitous promise, unenforceable in contract. Though the plaintiff might not be able to sue for breach of a contractual duty to warn, the plaintiff’s reliance on the institution’s mere promise to inform the community of outbreaks of infection could pave the way for a negligence claim.
Federal and State Immunity Statutes
Against this backdrop of mostly common law liability principles, IHEs should be aware of federal and state immunity statutes that may insulate them from liability from COVID-related claims. Many states have already adopted such laws, aimed primarily at providing protection to health care entities from lawsuits by patients and in some instances employees. (For a summary of such state laws, see http://www.atra.org/covid-19-resources/#state-leg.) On the federal level, Congress is considering a number of bills that may shield employers, health care entities, schools, colleges and universities from liability.
Defense Against Liability
Given the complex and overlapping statutory and common law liability concerns, IHEs should anticipate the need to defend claims from employees and students whether or not such claims may ultimately succeed. Assembling a successful defense will be contingent on the IHEs having taken at least the following steps:
- Design and implement public health science-based procedures for screening employees and students, detecting clusters, and isolation and quarantine.
- Communicate clearly that the institution cannot and does not guarantee that no infections will occur.
- Also communicate what steps the institution will take to try to minimize the risk of infection.
- Take those steps, and design and implement audit capacity to know soon if not in real time that the steps really are being taken.
Fortunately, these legal risk management strategies also represent the right thing to do for the institution’s students and employees. As with an isolated campus attack involving release of poisonous gas, an IHE is not responsible for a risk it could not have anticipated. But the IHE’s ethical obligation to provide a safe environment for its students and employees becomes a legal duty where that risk becomes known and understood.
- The U.S. Department of Education Handbook for Campus Safety and Security Reporting (2016), p. 6-2.
- https://ifap.ed.gov/electronic-announcements/040320UPDATEDGuidanceInterruptStudyRelCOVID19 . The Department also does not interpret the timely warning requirement “to apply to positive COVID-19 cases among individuals who are not attending classes, working, or residing on campus or to require notifications to such individuals.”
- Cornell Law School Legal Information Institute, https://www.law.cornell.edu/wex/tort .
- Idem., https://www.law.cornell.edu/wex/negligence .
- See Restatement (Second) of Torts § 282 (1965).
- Davidson v. University of North Carolina at Chapel Hill, 142 N.C. 544, 553, 543 S.E.2d 920, 926 (2001.)
- Id., citing W. Page. Keeton, et al., Prosser and Keeton on the Law of Torts § 56, at 373-74 (5th ed. 1984.)
- Public institutions, as agencies of state government, generally enjoy sovereign immunity from negligence claims, and such claims are relegated to state tort claims act procedures that include ceilings on institutional liability.