Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

My brother-in-law is a first-shift foreman at our local Skippy Peanut Butter factory, and he has offered to make the factory available for field trips for our middle school students. I think that he and the company are trying to promote a positive image for Skippy and peanut butter more generally.

I know all about peanut allergies, and I want to be careful here. But I do think that the factory tour could be a great educational experience for those students who will not have an allergic reaction. So I am planning to make the following proposal to my superintendent for approval. . . Next spring, the sixth graders will go to the Skippy Peanut Butter factory to learn all about how peanut butter is made and packaged. Those who are allergic to peanut products will stay behind safely in study hall.

I have even considered the possibility that some students may have an allergic reaction at the plant. We will have Epi-pens on hand, just in case. But more to the point, I have worked up a comprehensive field trip permission form that includes a waiver of claims so that parents cannot sue us if something goes wrong. Parents can decide whether to assume the risk of this field trip, and if they choose not to go on the field trip, it’s fine – their child can stay in the study hall with the others.

Given your greater expertise in these legal matters, I write to make sure that I am not missing anything. Let me know. Please.

Thank you,
Thinking Ahead

Dear Thinking:

While it is kind of your brother-in-law to invite your students to tour the factory where he works, I suggest that you rethink this entire idea. Let’s start with the suggestion that you have parents sign a waiver of claims. Under Connecticut law, that is a non-starter. The courts have ruled that such waivers of potential future claims are unenforceable as against public policy. If a student is not adequately warned or protected and is injured during the field trip, a waiver will not protect the school district from a claim, and the district may be held liable if it was at fault.

That said, permission slips serve the important purpose of informing parents and students of the potential risks of a particular trip. Indeed, a failure to warn of known dangers can result in liability. An extreme example is the terribly unfortunate situation that recently befell the Hotchkiss School. It organized a trip to China, and, sadly, a student hiking in a rural area suffered severe and life-altering injuries after being bitten by a tick. A jury found that the Hotchkiss School failed to warn participants against known dangers and awarded the student and her family over $40,000,000 in damages. The federal courts then referred the case to the Connecticut Supreme Court, certifying two questions: (1) whether Connecticut public policy supported imposing a duty on a school to warn about or to protect against the foreseeable risk of a serious insect-borne disease when it organizes a trip abroad, and (2) whether the noneconomic portion of the damages award should be reduced. Last August, the Connecticut Supreme Court answered these questions, holding that public policy in Connecticut does impose a duty to warn about risks in such cases, and that there was no need under Connecticut law to reduce the damage award. The case is now back before the Second Circuit Court of Appeals for further argument and final disposition.

While this case, Munn v. The Hotchkiss School, is an extreme example (one justice noted that the injured student was more likely to be struck and killed by a meteorite), it serves as an important cautionary tale. In planning field trips, school officials should be clear and thorough in warning about risks. Here, an appropriate permission slip should not only notify parents that the students will be visiting a peanut butter factory, but it should also warn parents and students of any related risks.

Finally, you mention that students who are allergic to peanut products will be left behind to spend the day in study hall. While the district’s legal duty to accommodate students with disabilities on field trips is beyond the scope of your question (and this answer), Legal Mailbag cannot resist asking whether your plan is insensitive to the interests of all children. Wouldn’t it be better to plan a field trip in which all students can participate? Just saying.