Dear Legal Mailbag:

As the principal of an elementary school, I have had my difficulties with permission slips for various field trips. More than once, we have had a young student in the office in tears while we frantically try to track down a parent who did not return the permission slip. When we can, we let the student go on the trip, figuring that verbal permission is better than none.

I was talking to my brother-in-law about this problem over the weekend, and in his officious way (yes, he is a lawyer) he wondered aloud why we even bother with permission slips unless parents sign off waiving liability. Since we go to so much trouble to get permission slips back, he argued, we might as well get something in return to protect the school district from claims.

Now I am confused. Can we get parents to waive liability claims as a condition for their child attending a field trip? If not, should we just scrap the whole permission slip thing?

Getting It in Writing
Dear Getting:

Apparently your brother-in-law doesn’t practice school law. The courts have ruled that waivers of future negligence claims are void as against public policy, and it is clear that a parent’s waiver of claims would be unenforceable. Requiring that parents “sign here or your kid can’t go on the trip” would antagonize any parent who bothers to read the form, and the purported waiver would be ineffective in any event.

Your larger question, whether permission slips are worth the bother, is a good one, and Legal Mailbag has the answer – Yes! A field trip is a change in the school routine that exposes children to a different situation. A permission slip provides notice to the parent of that change in routine and gives the parents an opportunity to assure that any special considerations are addressed. To take an extreme example, if the class is going on a field trip to a candy bar factory where peanuts are used, a permission slip informing the parent of the field trip would enable the parent to make an informed decision whether the student should go on the trip and under what circumstances.

The Hotchkiss School learned the hard way about the need to provide advance notification to students going on trips and to their parents. In Munn v. The Hotchkiss School, 326 Conn. 540 (2017), a jury in federal district court awarded a student on a school-sponsored trip over $40,000,000 after she suffered catastrophic injury as a result of being bitten by a tick in China. Munn v. The Hotchkiss School, 24 F. Supp. 3d 155 (D. Conn. 2014). Upon appeal, the Second Circuit Court of Appeals certified two questions for the Connecticut Supreme Court: (1) Does Connecticut public policy support imposing a duty on a school to warn about or protect against the risk of a serious insect-borne disease when it organizes a trip abroad?; (2) If so, does an award of approximately $41.5 million in favor of the plaintiffs, $31.5 million of which are non-economic damages, warrant remittitur (i.e., a reduction in damages)? Munn v. The Hotchkiss School, 795 F.3d 324 (2d Cir. 2015).

The Connecticut Supreme Court answered those questions, holding that there is no public policy in Connecticut against enforcing a duty against school officials to warn of such risks, stating, “it is beyond dispute that, as a general matter, a school having custody of minor children has an obligation to use reasonable care to protect those children from foreseeable harms during school sponsored activities, including educational trips abroad.” Moreover, considering the specific facts, the court held that there was no public policy reason for upsetting the jury verdict, stating, “that the normal expectations of participants in a school sponsored educational trip abroad, involving minor children, are that the organizer of the trip would take reasonable measures to warn the participants and their parents about the serious insect-borne diseases that are present in the areas to be visited and to protect the children from those diseases.”

Legal Mailbag does not want to scare you away from field trips. As Connecticut Supreme Court Justice Espinosa observed in her concurring opinion in Munn:

By my calculations, [the student] had less than a one in two million chance of contracting TBE during her brief field trip to Mt. Pan, lower even than her chance of being struck and killed by a meteorite. If that was foreseeable, then it is difficult to imagine any misfortune that would not be.

We cannot control every situation, and we can never predict what a jury will do – that’s why school districts have insurance. But thoughtful notice and warnings on permission slips, particularly for international travel, are advisable and reduce the risk of liability.

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