Massachusetts health clubs may not demand that customers sign waivers of liablity

Frequent readers of this blog know that I abhor waivers of liability, especially (but not only) waivers that parents have to sign so that their minor children can participate in activities such as summer camps or public school field trips.  Waivers of liability are the written forms you are sometimes required to sign stating that if you get hurt (or your child gets hurt) because the company making you sign the waiver did something wrong you cannot sue that company.  Here's a link to some of my posts on the subject.

A Massachusetts statute makes it illegal for a health clubs to require waivers of liability.  Massachusetts General Laws ch. 93 §80 provides:

No contract for health club services may contain any provisions whereby the buyer agrees not to assert against the seller or any assignee or transferee of the health club services contract any claim or defense arising out of the health club services contract or the buyer's activities at the health club.

A health club is not just a gym.  It is defined in Massachusetts General Laws ch. 93 §78 as:

each facility or location or group or chain of facilities or locations, in which any person, firm, corporation, partnership, unincorporated association, franchise or other business enterprise offers facilities for or instruction, training or assistance in the preservation, maintenance, encouragement or development of physical fitness, conditioning or well being. Such term shall include, but not be limited to, health spas, sports, tennis, racquet ball, platform tennis and health clubs, figure salons, health studios, gymnasiums, weight control centers or studios, martial arts and self-defense schools, or any other similar course of physical training. 

There's not a lot of caselaw interpreting the definition.  It is not a stretch to say that it includes, among my kids' various sporadic activities, providers of instruction or facilities for rock climbing, trampolining, gymnastics, and ice skating.  One could argue that  the definition of health club is broad enough to include any organization that has as part of its mission physical well being.  Could summer camps be included?  Petting zoos?  Afterschool programs?  School camps?

Whether or not such organizations are included in the definition (and unless the legislature clarifies the law, only the courts can determine that), no company should require waivers of liability.  The proper response to the potential for injured patrons is adequate insurance or self-insurance.  Any other solution is unethical.

(Let me be clear, however, that I do not believe that a gym should be liable simply because someone gets hurt using the facilities.  I am not interested in suing if my child falls off a balance beam at gymnastics camp.  But I do want my child to be fairly compensated if a balance beam falls on her.) 

Still fighting to get releases of liability removed from Boston Public Schools permission slips

I have posted here, here, here, and here on my efforts to have releases of liability removed from field trip permission slips Boston Public School parents are required to sign.

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. 

 

 

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 December 1, 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.      

One more thing on waivers of liability in field trip permission slips

My testimony before the Boston School Committee meeting is here.  My testimony starts around 23:35.  Boston School Committee member Mary Tamer's exchange with legal advisor Alissa Ocasio begins at around 3:04:18.  They agreed that Ms. Ocasio would provide the school committee with information about what other Massachusetts school districts do with respect to waivers of liability in permission slips.  As far as I know Ms. Ocasio has not responded to that request yet.  (But the answer is, it varies.  Some districts use waivers and others don't.  However, that is irrelevant.  Other school districts should look to Boston, not the other way around.)

See my other posts on the issue here, here, and here.

Summary of Massachusetts Lawyers Weekly article on permission slip waivers

Yesterday's post noted that Massachusetts Lawyers Weekly published an article on my fight to have the Boston Public School system remove its waiver of liability from its field trip permission slips.

In response to requests from readers of this blog who do not subscribe to Lawyers Weekly, this is a summary of the article.

Lawyers Weekly nicely detailed my point of view on the issue, which I posted here.  Lee McGuire of the BPS indicated that the BPS is not about to  make any changes (but I note that the Boston School Committee requested additional information from the BPS legal department which, to the best of my knowledge, has not yet been presented). McGuire cited a 2002 Supreme Judicial Court case called Sharon v. City of Newton.  In my opinion McGuire miscited the opinion, which addresses voluntary afterschool activities (in that case, cheerleading), and stated:

We have not had occasion to rule on the validity of releases required in the context of a compelled activity or as a condition for the receipt of essential services (e.g., public education, medical attention, housing, public utilities), and the enforceability of mandatory releases in such circumstances might well offend public policy. . . .  In this case, Merav's participation in the city's extracurricular activity of cheerleading was neither compelled nor essential, and we conclude that the public policy of the Commonwealth is not offended by requiring a release as a prerequisite to that participation.
 

(Emphasis added.)

Throughout my dealings with the BPS, they have gone out of their way to assure me that my children will not be "penalized" if I choose not to have them participate in field trips because I don't want to sign the release of liability.  They are doing that to get around the potential exception for public education activities stated in Sharon, trying to put field trips in the category of voluntary afterschool activities rather than an essential part of the public school  curriculum.

As the article notes, both the BPS and I agree that the field trips are a very important part of the public education experience.  In third grade at my kids' school, for example, the students study pilgrims.  (The school does a fantastic job of integrating the point of view of Native Americans into the curriculum, by the way, including visits with members of the Wampanoag tribe.)  A central feature of that course of study is a field trip to Plimoth Plantation.   The attempt to put that field trip in the category of an afterschool activity rather than an essential part of the curriculum is flatly wrong, and I  don't believe that a Massachusetts court would uphold that attempt.  But Massachusetts courts have not ruled on the question of whether releases for essential public education activities are binding. 

The article notes that I write on field trip permission slips that I am signing the waiver under protest.  I don't want anyone to think that I am giving legal advice that such a  notation would have any effect on whether or not the waiver is binding.  But if we could get a significant group of parents to do it, the BPS might (or might not) take notice. 

Finally, the article quotes me as saying that "I know that at some point someone is going to slip up and someone is going to get hurt."  I did say that the reporter, but I regret it.  What I should have said is that statistically it is likely that at some point in time some kid on a BPS field trip will be injured because of the negligence of the BPS or one of its partners.  I am fully confident in both the BPS and its partners, but as a civil litigator I know that accidents happen.  My point is that if an accident happens when a child is in the care of the BPS, whether on a field trip or otherwise, that child should have the same rights as anyone else.  The BPS and the students in its care are best protected by insurance, not waivers of liability.