This past Wednesday I returned to the Boston School Committee. I spoke during the public comment period and pointed out that last February the BSC had requested that the BPS legal department report back to it on whether other school systems in Massachusetts require similar releases of liability. That report has not happened yet. I again requested that the releases of liability be removed from permission slips.
The following is the handout I gave to the School Committee members (slightly redacted to protect the privacy of my children):
FOLLOW UP ON 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.”
PREVIOUS COMMENT BEFORE THE SCHOOL COMMITTEE, AND LACK OF PROMISED FOLLOW UP
I spoke during the public comment period on this issue at the School Committee meeting of February 27, 2013.
My written comments are attached.
Schoolcommittee member Mary Tamer requested a report back from the legal department on what other school systems in Massachusetts are doing.
I sent a follow up email in the spring and was told by Chairperson O’Neill that the School Committee would reach the issue but not before the conclusion of the current (2012-2013) school year.
I sent another email a few weeks ago to which I received no reply.
I am therefore here to again request that releases of liability be removed from field trip permission slips.
WHAT DO OTHER SCHOOL DISTRICTS DO?
First, this is not the right question to be asking. Boston is the largest and the best school district in Massachusetts, and has among the most resources to determine what is right. We should lead other school districts, not follow them.
Second, there is a great deal of variation; however, I am not aware of any school district that has a release as comprehensive as Boston’s. I have attached permission slips from Brockton and from Chicago, which contain no waiver of liability. I have also attached a permission slip from New York City, which releases liability “except if due to the negligence of school officials.”
MASSACHUSETTS LAWYERS WEEKLY ARTICLE
I have attached an article in Massachusetts Lawyers Weekly which covered the issue on April 18, 2013.
BPS spokesperson Lee McGuire was quoted in the article. He made two statements with which I disagree.
First, he stated that Massachusetts courts have upheld school releases of liability. That is incorrect. The case he cites, Sharon v. City of Newton, 437 Mass. 99 (2002), upheld releases in voluntary afterschool activities -- in that case, cheerleading. It specifically reserved the question of whether a release of liability would be upheld in the context of a required school activity.
More importantly, McGuire asserted that the waivers of liability allow the schools to continue to offer field trips. That is simply the wrong approach. The BPS and its students are best protected by insurance, which is a cost of doing business, not by a waiver which allows entities to avoid responsibility for their own negligence. If a child is seriously injured on a field trip and liability has been released, then ultimately that child will be taken care of by taxpayers through public programs that assist people with disabilities. In the meantime the child’s family has not only suffered as a result of the child’s injury but has possibly been bankrupted by the cost of care. It is much fairer and better for everyone -- the BPS, the students, the parents, the taxpayers -- to simply require insurance.
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 December 1, 2013.
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.