by Philip E. Goss Jr., Esq.
In this new COVID-19 world, many of you are using videoconferencing in lieu of in-person classes. Is teaching virtually in this manner without potential liability? The short answer is no.
As you know, classes conducted on your school premises have many built-in liability protections. For example, no student will be injured by a rambunctious pet or younger sibling running across the studio floor. No misplaced pieces of furniture will get in the way of full-power kicks.
Furthermore, should a student be injured at your school, you’ll have immediate knowledge of the incident, as well as the ability to take remedial action and then create an incident report that records all the facts while they’re fresh in the minds of witnesses.
Clearly, these protections do not apply when instruction takes place via videoconferencing. Nevertheless, many instructors are using video. Assuming you’re one of them, I offer the following cautionary advice.
Whatever online service or platform you choose, it’s essential to make sure it’s secure. You don’t want an outsider hijacking your streaming videos or altering your stored videos.
I also strongly suggest that you have all your students (and parents of minors) sign a statement of consent. In it, the student should acknowledge and agree that all classes are being recorded and that the recordings will be maintained in segregated video and audio files. Furthermore, the parents should agree that if the attending student is a minor, a parent or other adult will be present to supervise the student for the duration of each video class.
Additionally, you should mandate that an obstruction-free space of no less than a 6 feet by 6 feet be made available for the student’s class activities. Finally, I suggest that the consent statement specifically direct that any injury incurred during class be disclosed to the instructor contemporaneously or immediately following the class.
As an additional protection, you should inform your insurance carrier of your plans to use videoconferencing for the teaching of your classes. While I’m not qualified to opine as to whether this type of teaching will increase your liability insurance premium, disclosure is imperative to ensure coverage in the event of an injury.
As a final protection, before any class is adjourned, I suggest that you ask each student to specifically state if he or she has any “questions, concerns or comments.” This, when added to the aforementioned consent, could save you from an opportunistic student or parent.
What I’ve described here also requires certain duties on your part. Since classes are recorded, you must direct your instructors to be professional at all times. Jokes and other comments that may be acceptable during an in-person class may seem inappropriate in a videoconference and could be misinterpreted.
Additionally, in the event of future litigation, it’s important to create a spoliation and retention policy. Because statutes of limitation might not even begin to run until a student reaches the age of adulthood in your jurisdiction, I suggest that you never erase any video files. In fact, under the law, destroying relevant evidence can create an adverse presumption, basically stating that you’re guilty of the thing you’re being accused of based simply on the fact that you destroyed evidence. This can apply even if the erasure was unintentional.
Once we’re past the current health crisis, you can revert to your previous comfort zone. Until then, those who choose or are required to conduct classes by video must play defense.
To contact attorney Philip E. Goss Jr., send an email [email protected]
Join our mailing list to receive the latest news and updates from our team.
Don't worry, your information will not be shared.
Fill in your information below and we'll send you new blog content when it's released.