Now that a childhood COVID-19 vaccine has received FDA approval, the vaccination of school-aged minors is underway. Just as vaccination requirements for adults have prompted a wave of litigation, we expect the same with respect to COVID-19 vaccination as a prerequisite to attending primary schools. But with a twist. Unlike adults who ignore mandatory public health measures, parents are subject to a general common-law duty of care to “control” their minor children. See Restatement (Second) of Torts §316 (1965) (“A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them.”).
Most of the §316 cases we’ve seen (we haven’t looked that hard) involve minor children misusing guns. E.g., K.H. v. J.R., 826 A.2d 863, 873 (Pa. 2003) (“Although a parent/child relationship by itself is insufficient to render the parents liable for the tortious acts of their children, liability may attach where the negligence of the parents makes the injury possible.”) (misuse of BB gun) (citing, inter alia Restatement Second §316); Robertson v. Wentz, 232 Cal. Rptr. 634, 637-39 (Cal. App. 1986) (§316 firearms case dismissed where parental ability to control not established).
We haven’t seen any vaccination-related court decisions yet, but the scholarly literature discusses situations where one parent might sue another parent over the defendant parent’s sending an unvaccinated kid to school, and allegedly causing the plaintiff parent’s child to become infected. See Kevin Hooker, “Exemptions to Vaccine Mandates: The Problem & Possible Remedies,” 14 Hous. J. Health L. & Pol’y 263 (2014); Teri Baxter, “Tort Liability for Parents Who Choose Not to Vaccinate Their Children & Whose Unvaccinated Children Infect Others,” 82 U. Cin. L. Rev. 103 (2013); Dorit Reiss, “Compensating the Victims of Failure to Vaccinate: What are the Options?” 23 Cornell J. L. & Pub. Pol’y 595 (2013). The range of possible fact patterns could range from simply knowingly sending an unvaccinated child to school, to sending an unvaccinated child to school when either the child or the parents are known or suspected of having COVID-19, claiming some other bogus form of immunization, to lying about vaccination status to school authorities, all the way up to sending an unvaccinated child to school with forged vaccination papers. As the links indicate, press reports discussing variants of all of these situations already exist. Further, where a child is sent to school in violation of a mandatory COVID vaccination requirement, if and when such requirements exist (as they have for decades with respect to vaccination against other diseases), a negligence per se claim might be alleged, in addition to common-law negligence under §316.
However, administration of COVID-19 vaccine (or masking, for that matter) is a classic “covered countermeasure” under the PREP Act, 42 U.S.C. §247d(i)(1). That led us to wonder whether antivax parents, if sued by other parents for their children infecting the plaintiffs’ children with COVID-19 at school, could claim immunity from suit under the PREP Act. That would depend on whether parents who chose to withhold a “covered countermeasure” from their own children are “covered persons” under 42 U.S.C. §247d(i)(2). So, who is a covered person? The PREP Act provides:
The term “covered person”, when used with respect to the administration or use of a covered countermeasure [such as COVID-19 vaccination or masking], means −
(A) the United States; or
(B) a person or entity that is—
(i) a manufacturer of such countermeasure;
(ii) a distributor of such countermeasure;
(iii) a program planner of such countermeasure;
(iv) a qualified person who prescribed, administered, or dispensed such countermeasure; or
(v) an official, agent, or employee of a person or entity described in clause (i), (ii), (iii), or (iv).
Antivax parents are obviously not the government, or manufacturers, distributors or dispensers of COVID-19 vaccines. That leaves immunity as a “program planner” on the table. Parents certainly plan, and are responsible for, the vaccination – or not – of their children. Indeed, in preparing our Survival of the Vaxxest post we ran across a couple of cases in which failure to vaccinate was a basis for termination of parental rights. See In re Marsh, 14 A.2d 368, 370 (Pa. Super. 1940); Matter of Christine M., 595 N.Y.S.2d 606, 618 (N.Y. Fam. Ct. Dec. 21, 1992). So could antivax parents claim PREP Act immunity from suits for damages for their unvaccinated kids infecting their schoolmates?
We turn to the Act’s definition of “program planner”:
The term “program planner” means a State or local government, including an Indian tribe, a person employed by the State or local government, or other person who supervised or administered a program with respect to the administration, dispensing, distribution, provision, or use of a security countermeasure or a qualified pandemic or epidemic product, including a person who has established requirements, provided policy guidance, or supplied technical or scientific advice or assistance or provides a facility to administer or use a covered countermeasure in accordance with a declaration under subsection (b).
42 U.S.C. §247d(i)(6). The “other person” language of this definition, applicable to a private individual, such as a parent, requires supervision or administration of a “program” that involves “administration, dispensing, distribution, provision, or use” of a “pandemic . . . product” (such as a vaccine or a mask). That can include someone who “has established requirements, provided policy guidance, or supplied technical or scientific advice or assistance” to such a program. Id.
That would not seem to include an antivax parent, although without the PREP Act defining “program” we can’t be sure – we’ve seen plenty of ridiculous claims in COVID-19-related litigation already, so an antivax parent might claim to be “establish[ing] requirements” for his or her child’s vaccination, or even to have provided “advice or assistance,” although we doubt that is what the HHS had in mind when it made its PREP Act emergency declaration:
A program planner means a state or local government . . .; a person employed by the state or local government; or other person who supervises or administers a program with respect to the administration, dispensing, distribution, provision, or use of a Covered Countermeasure, including a person who establishes requirements, provides policy guidance, or supplies technical or scientific advice or assistance or provides a facility to administer or use a Covered Countermeasure in accordance with the Secretary’s Declaration. Under this definition, a private sector employer or community group or other “person” can be a program planner when it carries out the described activities.
85 Fed. Reg. 15198, 15199 (HHS March 17, 2020). Nor have any of the subsequent amendments to the initial declaration addressed parental actions.
Recent PREP Act caselaw provides another wrinkle. In COVID-19 cases – mostly involving nursing homes – courts have drawn a distinction between the alleged “failure” of “program administrators” to employ COVID countermeasures and the alleged negligent employment of such countermeasures. Courts have allowed the first category, claims of nonfeasance, to proceed notwithstanding PREP Act immunity.
[T]he complaints do not allege that Plaintiffs’ injuries arose from . . . administration to them of vaccines or medicines (or for that matter protective gear) − activities that the PREP Act promotes by affording immunity. . . . Plaintiffs are claiming (inter alia) that the Defendants committed negligence in that, among other things, they failed to take countermeasures, some of them allegedly federally required.
Estate of Maglioli v. Andover Subacute Rehabilitation Center I, 478 F. Supp.3d 518, 532 (D.N.J. 2020), aff’d on other grounds, ___ F.4th ___, 2021 WL 4890189 (3d Cir. Oct. 20, 2021). See also Lutz v. Big Blue Healthcare, Inc., 480 F. Supp.3d 1207, 1216-17 (D. Kan. 2020); Gunter v. CCRC OPCO-Freedom Square, LLC, 2020 WL 8461513, at *4 (M.D. Fla. Oct. 29, 2020); Sherod v. Comprehensive Healthcare Management Services, LLC, 2020 WL 6140474, at *7-8 (W.D. Pa. Oct. 16, 2020); Estate of Jones v. St. Jude Operating Co., LLC, 2020 WL 8361924, at *9 (D. Or. Oct. 14, 2020); Martin v. Serrano Post Acute LLC, 2020 WL 5422949, at *2 (C.D. Cal. Sept. 10, 2020).
These situations are essentially the same as allegations that would be asserted against antivax parents whose children allegedly infected a plaintiff’s child with COVID-29 – the defendants didn’t do anything, rather they failed to do something, that being vaccinating (or masking) their children. Thus it is likely that, in any COVID-19-related litigation against a defendant for failure to vaccinate their children before sending them to school, courts would consider the alleged conduct to be nonfeasance that would escape PREP Act immunity under the above case law.
Finally, there is an express statutory exception to PREP Act immunity for persons who committed “willful misconduct,” which is defined as actions or omissions committed:
(i) intentionally to achieve a wrongful purpose;
(ii) knowingly without legal or factual justification; and
(iii) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.
42 U.S.C. §247d(c)(1)(A). See Maglioli v. Alliance HC Holdings LLC, ___ F.4th ___, 2021 WL 4890189, at *2 (3d Cir. Oct. 20, 2021) (discussing this exception). Some of the more aggravated fact patterns we mentioned above – forgery of vaccination documents, affirmatively lying about immunization status, or knowingly sending a COVID-19 positive child to school – might well fit within the PREP Act’s definition of “willful misconduct” and allow litigation to proceed on that basis.