BUFFALO (WBEN) – When the CDC changed its guidance on social distancing, saying that three feet between students yields virtually the same results as six feet, the calls from parents to reopen schools in Erie County grew louder.
Despite the change in guidance from the CDC, Erie County Executive Mark Poloncarz has maintained his position that Erie County will wait for guidance updates from New York State.
During the county executive’s weekly briefing on Tuesday, he said that school districts that decide to reopen ahead of updated guidance from the state are opening themselves up to lawsuits as well as the possibility of their insurance companies dropping coverage.
“I think there is merit to that,” said attorney Robert Scalione of Lipsitz Green Scime Cambria, who noted that schools have a duty to to reasonable measures to ensure the health and safety of their students, also known as the standard of care.
“A lawsuit of this type is generally based on negligence, meaning they’ve done something that’s fallen below the standard of care,” he said. “But now we’re in pandemic world, and in global pandemic world, the standard of care for how these schools are supposed to operate, at least in New York, to ensure the health and safety of their students becomes the guidelines that are handed down by the New York State Department of Health and the New York State Education Department.
“More importantly, you’re potentially risking insurance coverage,” Scalione continued. “Say the school district is insured by whatever insurance company for negligence claims, they could have grounds to potentially disclaim coverage if the school is not following the standard of care.”
Of course, Scalione admitted it would be very difficult to prove that a student definitely contracted the virus on school grounds.
However, Corey Hogan of HoganWillig represents a number of parents from various schools districts that are adamant about getting their children back into classrooms as soon as possible, and he believes county officials are simply using the state’s guidelines as an excuse.
“There’s nothing out there indicating anywhere that it’s a problem,” said Hogan. “When the CDC went from six to three feet, and now (county officials) are hanging on to the fact that the Department of Education or the State Health Department hasn’t approved that yet. They should have a little bit of gumption and say ‘we need to do what’s right for these kids.'”
Earlier this week, attorneys at HoganWillig filed a lawsuit on behalf of parents within the the district against the Grand Island School District, Governor Cuomo, the New York State Department of Health, as well as the Erie County Department of Health and Poloncarz, and they plan on bringing a similar lawsuit against the Clarence School District in the near future.
“Maybe we can iron out the differences – we would love to be able to do it that way, but if not, then we’re going to ask a judge to make a decision as to whether these kids have a right to return to school, which the New York State Constitution guarantees to them, or whether the judge feels that, for whatever reason, he’s not willing to allow that to occur,” said Hogan.