Thursday, February 28, 2013

School permission slips should not have waivers of liability

As regular readers of this blog know, requiring parents to sign releases of liability for their children to participate in activities is a pet peeve of mine.  To be clear, I have no problem with a limited waiver with respect to a slightly dangerous activity itself.  For example, if my child is doing a gymnastics program signing a waiver releasing liability if the child falls off a balance beam is fine.  But signing a waiver releasing liability if a balance beam falls on a child is another matter altogether. 

The Boston Public Schools require parents to sign comprehensive waivers of liability in order for their children to participate in field trips.  Last night I testified at the open portion of the Boston School Committee meeting to urge that the waiver requirement be removed.  The following is the written information I gave to the School Committee members to accompany my testimony (somewhat redacted to protect the privacy of my children):


RELEASES OF LIABILITY IN FIELD TRIP PERMISSION SLIPS


THE ISSUE:  Boston public school permission slips require parents to sign a release of all rights if their child is injured on a field trip. 

The release includes “any acts of negligence or otherwise from the moment that my student is under BPS supervision and throughout the duration of the trip.” 

 In the release, parents agree “to indemnify and hold harmless BPS and any of the individuals and other organizations associated with the BPS in this field trip from any claim or liability arising out of my child’s participation in this field trip.” 

THE LANGUAGE IN THE FIELD TRIP PERMISSION SLIP (FROM SUPERINTENDANT’S CIRCULARS #CAO-23 and 24, 2012-2013) (attached):
I assume full responsibility for any risk of personal or property damages arising out of or related to my/my child’s participation in this field trip, including any acts of negligence or otherwise from the moment that my student is under BPS supervision and throughout the duration of the trip. I further agree to indemnify and to hold harmless BPS and any of the individuals and other organizations associated with BPS in this field trip from any claim or liability arising out of my/my child’s participation in this field trip.
WHY THIS IS A PROBLEM: 

If a child is injured as a result of negligence (unreasonable carelessness) of the BPS or one of its partners, the child should be entitled to the same recovery under our legal system that he or she would be entitled to if injured any place else.
 

Example 1:  If a bus driver falls asleep at the wheel and the bus hits a student standing on a sidewalk, that student is entitled to recover his or her fair damages from the bus company and its insurer.  But if a bus driver falls asleep at the wheel and students who are on the bus for a field trip are injured, they are not entitled to recover any damages because their parents signed the release of liability. 

 
Example 2:  If  a student slips on ice on steps leading to a school building and is injured, whether or not he or she can recover damages will depend on whether the ice was on the steps as a result of negligence (unreasonable carelessness).  But if a student slips on ice on steps leading to a building at a camp the student is attending for a field trip, there is no recovery even if the ice was there because of the negligence of the camp. 
 

THE SOLUTION:
 

Rather than requiring that parents sign a release, the BPS should require that its partners have adequate insurance to cover injuries caused by negligence. 
 

I have spoken with BPS field trip partners who have adequate insurance and who do not agree with the release requirement. 
 

ACTIONS TO DATE
 

I have raised this issue with the BPS legal department.  Tim Nicolette, chief of staff of the superintendent’s office, responded to me with a telephone call, in which Doug Heim of the legal department and Bethany Wood (Director of Global Education; BPS staffer in charge of permission slips) also participated.  Tim Nicolette stated that, after research, he will not recommend that the release be deleted from the permission slip forms.  He gave the following reasons:
 

1.       Releases of liability are legal; do not release liability for gross negligence; and some other school systems use them. 
 

Response:    Those facts are irrelevant.  This is not a legal issue; it is a moral one.  It is impossible to prevent all accidents.  When the BPS is entrusted with children, in addition to using its best efforts to prevent negligent accidents, it needs to act responsibly in the event that an accident happens.  That means allowing injured students the same recourse that any other person would have if they are injured as a result of negligence.
 

I researched permission slips used in other school systems.  Many contain no release of liability.  (Permission slips from Brockton and Chicago are attached.)  New York City uses a very limited release, which says “I agree and understand that I am responsible for the actions of my child.  I release the school from all claims and liability that arise in connection with the trip, except if due to the negligence of school officials.”  (Attached.) 
 

Even if many other school systems did use comprehensive releases, it should not matter.  Boston should take a leadership role on this issue and do the right thing. 
 

2.       Children of parents who do not want to sign the release can opt out of field trips with no effect on their grades.
 

Response:  That position is unreasonable.  It gives different rights to children of parents who can read and understand the legal ramifications of the release than to children of parents who cannot do so.  Moreover, field trips are an integral part of school curriculums and it is unfair to require families to give up basic legal rights in order to participate in field trips. 
 

3.       The release protects the BPS (through the indemnity provision) if a student on a field trip injures a third party. 
 

Response:  The BPS should not seek to “pass the buck” on a claim of negligent supervision.  Moreover, this provision is wholly ineffective with respect to a claim by a third party unless the student’s family happens to be rich or have other resources.  It makes much more sense for the BPS to have insurance or self-insurance.
 

CONCLUSION
 

The release of liability should be removed from field trip permission slips.  Instead, the BPS should require that its partners have adequate insurance to protect students in the event that they are injured as a result of negligence.
 

REQUEST FOR RESPONSE
 

I request that the school committee get back to me with a response by Wednesday, March 13, 2013.  

 

ABOUT ME



I am a lawyer who specializes in liability insurance issues (“insurance coverage”).  As such, I spend a lot of time thinking about the purposes served by insurance,  about how risk should be reasonably delegated, and about the devastating impact on individuals and families when risk is not delegated reasonably.      

6 comments:

Anonymous said...

Came across your article trying to find more info on this. Hillsborough county schools (Tampa, Fl.) Include a liability release on permission slips. I am not a lawyer, but this just does not sit well with me.

Nina Kallen said...

Best of luck. If you bring it up with your school district let me know how it works out.

Fran George said...

I live in kck and this is something they r doing here as well but to make it even worse they have included that u will not hold them responsibility in any way shape or form even in the event of your child's death! I find this extremely ridiculous and I'm looking to see if somebody could please tell me if this is legal.

Nina Kallen said...

Whether or not a public school release of liability is enforceable, as well as the extent to which you can ever recover damages from a public entity, is a question of state law.

Anonymous said...

My 9 year old just came home from school with a field trip "Permission, Release, Waiver" with no details about when (under date it just said 2015-2016) or what the activity was. Description of Activity just says "ECHO Field Trips". Besides the usual legalese, it ends with this gem: "This Waiver and Release is intended to be an express waiver and a release from any and all claims against (city withheld by me) Metro Government, it's officers, agents, and employees, arising from the Event, including all claims or causes of action based upon alleged negligence or gross negligence of---- Metro Government, it's agents, officers and employees." Did you see that? It even exempts them from gross negligence! In my state gross negligence CAN be covered by a waiver, though how defensible it is is another matter, especially when it comes to kids. Still, I wonder how many of his classmates' parents will sign this thing without even noticing what they're signing away?

Nina Kallen said...

Most of them will. In my experience often teachers and even school administrators are unaware of the releases in the permission slips or what they mean. Often the language was put in at the advice of someone a long time ago, as the path of least resistance, and never reexamined.