COVID19-XXVI: To Open or Not to Open: Potential Liability of Universities

Naman Nayyar

This is the 26th post in our COVID19 series.

The onset of the Covid-19 pandemic has drastically changed the manner in which the people of the world are leading their lives. To prevent uncontrollable spread of the virus, governments around the world have ordered a shutdown of schools, colleges and universities indefinitely. 192 nations have reported such closures and 1.58 billion students have been affected globally. On 16 March, the Indian government also followed suit and ordered closure of all educational establishments in the country. Ever since then, the education sector of the country has been hampered. With physical classes no longer possible, online classes have become the norm and there is a great deal of confusion among universities with regard to the modality of conducting examinations, reopening, etc.

While the resumption of physical classes is suspended for the time being, it is likely that universities will have to start physical classes sooner or later. However, there are serious doubts if Universities are in a position to resume physical classes as the number of cases are increasing exponentially everyday. This invites a very interesting question- in the unfortunate event that a student dies of Covid-19 on campus, who bears the responsibility for such a death? The endeavour of this article would be to analyse the possible liability of educational institutions in case of on campus deaths and try and enlist the possible causes of actions that can lie against them in such a situation. 

  • Negligence

The most obvious liability that universities will certainly be faced with is civil negligence. Negligence is caused by the breach of a duty of care towards a person to whom duty is owed which causes injury to that person. Courts have usually looked for 3 constituents to hold a defendant liable for civil negligence- (1) the existence of a duty of care between the plaintiff and defendant, (2) breach of said duty and (3) consequential damages. Any deficient action on the part of the university, with regard to the necessary precautions needed to prevent the spread of Covid 19, may result in the institution being liable for civil negligence. For example: Failure to regularly sanitise classrooms and common areas on the campus, lack of protective gear worn by college staff, etc. 

The central issue while attributing negligence to universities is establishing a duty of care between the students and the institution. Duty of care varies from situation to situation and there needs to be the existence of special circumstances to establish duty of care. The relationship between a university and its student is inevitably related to student welfare as the students rely on the college for their safety and a safe environment. It is generally expected of colleges by the society and parents that they are to protect their students from foreseeable harms on the campus. Further, the courts have also not hesitated to place liability on universities for on-campus injuries.

The existence of duty also depends upon the foreseeability and the proximity of the risk involved. The defendant should be able to reasonably foresee that his act or omission can cause injury to others. Further, the relationship between the plaintiff and defendant should be a proximate one, i.e., such that the defendant can contemplate the effects on the plaintiff as a result of his actions.  Here, the universal nature of the Covid 19 pandemic and the quick manner in which the disease spreads means that the university administration would be easily able to foresee that failure to take precautionary measures may result in the spread of the virus and since the students reside on campus, it can be easily contemplated that they will be at risk of infection. Since the risk seems to be foreseeable and proximate, it seems there would be no problems in fixing a duty of care on the universities. 

Once the duty of care is established, the plaintiff then has to prove breach of the duty. To prove breach, the standard usually used is that of the reasonable man. The court considers how a reasonable man would have responded to the situation in question and evaluates the action of the defendant from the lens of a reasonable man. The standard of care, skill, diligence required is constant in a particular situation and the standard varies depending on what particular situation is in question. Thus, the standard of care to be observed is a question of law. If the government or UGC comes up with precise guidelines regarding the precautionary measures to be taken by educational facilities, then the task of the courts, in determining the reasonableness of the authorities’ actions, would be easier. In the absence of such guidelines, the courts will use the reasonable man test to determine liability.

The final element that the plaintiff would have to prove is causation, i.e., proving that the actions (or lack of) of the university were the reason for the spread of the disease among the students. Proving causation can be the toughest part for the students because Covid 19 can spread through a multitude of sources like air, liquids, surfaces, etc. and infections are possible even when all precautions are being followed. In light of this, proving that a particular act or omission caused spread would be a high threshold to achieve for the students.

  • Additional Liability for State Institutions

Apart from being liable for Criminal and Tortious negligence, an added liability that State institutions could face can be in the form of Writ petitions asking for Public law remedies, if they are found to be a part of State under Article 12 of the Constitution. However, such determination would be made by the courts on a case to case basis. The Right to Health has been recognized as a fundamental right under Article 21 by the courts in India. The right broadly encompasses improving the health of the public and the standard of hygiene in the country, ensuring medical treatment to a patient in need and protection against health hazards. This right also puts the onus on the state to ensure the prevention of spread of diseases among the people. 

Thus, any lacking measure on part of a state institution keeping in mind the foreseeability and the obviousness of the risk, can incur liability for a Right to Health violation. For example: failure to conduct thermal testing and checking delivery people for symptoms while they are entering the campus. The relief granted by the courts in their writ jurisdiction can be very broad and the courts do not hesitate from awarding compensation to the victims and such compensation is without any prejudice to compensation awarded as a civil law remedy, such as in the case of M. Vijaya vs Chairman And Managing Director, Singareni Collieries Co. Ltd., Hyd.

While the onus for safety on hospitals is inevitably higher, as illustrated in the above cited case, courts have also imposed a duty on educational institutions for the safety and well being of their students, which has been reiterated by the UGC. In light of this, it is not far-fetched to think that similar writ petitions can be brought against state educational institutions on account of breach of Article 21 if their negligent actions lead to the spread of Covid-19 among the students on campus. If the university is found to be an arm of the state, it may very well have to pay compensation/damages to the students. It would be interesting to see the manner in which the courts deal with these issues. 

  • Conclusion

Covid-19 is not going to fade away anytime soon (if at all) and though the whole world is working on a vaccine, complete eradication of the virus seems utopian and the world will have to learn to live with the virus. It is almost inevitable that when universities and colleges in India reopen, the threat of the virus would not have abated. Thus, educational institutions around the country would be best served to consider all legal aspects and liabilities before they recall students on campus. In the unfortunate event of a student being infected on campus, the position of the university would be precarious. 

Any oversight on part of the university and any lacking in safety precautions would most certainly mean that it would be faced with  negligence lawsuits. It is difficult to forecast with certainty the approach that courts will adopt while dealing with such suits. However, in cases of blatant carelessness or clear failure to take necessary measures, the courts will not hesitate in ordering universities to pay compensation. Further, state institutions also bear the additional risk of facing writ petitions for breach of Article 21. . Therefore, universities would have to make sure that they have all bases covered.

The author is a student at National Law University, Jodhpur.