Dear Legal Mailbag:
I am concerned about liability as we gradually loosen restrictions and bring students back together, whether for graduation, summer activities, or reopening schools in the fall. It doesn’t seem fair that I have to worry about getting sued when I am just doing my job enriching the lives of children.
As a faithful reader of Legal Mailbag, I am aware of the indemnity statute and how it protects me from personal liability. Nonetheless, getting sued would be a royal pain, with depositions and maybe even a trial. So here’s my question – why can’t we just avoid all the uncertainty with a simple form? It seems that we are asked to waive liability all the time (have you ever gone to a trampoline center?), and it seems reasonable that we ask parents and students to waive liability in these uncertain times. I understand that some students will be at particular risk, and their parent can simply home-school them. But most students will be able to come back in the fall. We can be nice about it, but to keep things simple for everyone, I think that we should have them sign off waiving liability as a condition for returning to school in the fall. Do I get my honorary law degree now?
You will have to wait on the honorary degree. Waiver of liability is against public policy and, as such, unenforceable. Moreover, your suggestion that parents can simply home-school vulnerable children is dismissive and inconsistent with school district legal obligations.
Taking your waiver idea first, the courts have considered this issue, and they have ruled that waivers of liability are unenforceable because they are against public policy. First, such requests for waiver typically arise when the bargaining power between the parties is unequal, and the courts are reluctant to enforce such waivers. That is especially true when legal rights are involved. Parents have a right to send their children to school whether they execute a waiver or not, and a parent who would sign a waiver of liability form is simply misinformed.
Second, the courts have been concerned about the impact of such waivers. The risk of liability encourages careful behavior, and relieving one party of the potential liability that may otherwise be imposed for unsafe behavior may in fact discourage safe behavior. Accordingly, courts will typically not permit one party to evade liability in advance through a waiver.
That all said, you should distinguish between waiver forms and notifications. As we go through the summer and prepare for the fall, there will be situations in which students come together, for some form of summer school, for out-of-season conditioning, or other activities. In such cases, it is entirely appropriate to ask students and parents to acknowledge the risks presented by COVID on some sort of form. If a claim of district liability is made, the question will be whether district officials have acted reasonably. Warning parents and students of risks and letting them make the choice whether to participate in activities can help establish that district actions were reasonable. When parents and students acknowledge receipt of such a warning, they cannot later claim that no one told them that participating in an activity has inherent risk.
Finally, school officials cannot simply tell parents to home school to avoid risks. If a student’s health is compromised such that the student is at risk in returning to school when it reopens, school officials have the duty to make accommodations to that health condition, and to provide education to that student as may be appropriate in light of that condition.
Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.