Dear Legal Mailbag:
I am as sick of COVID as the next person, but as an assistant principal, I want students to have as normal an experience as possible. It is only January, but end-of-year activities will be upon us soon, and I want to be ready.
Now, it seems like everyone will get COVID at some point, and I am worried that students and their parents may claim that it is somehow our fault if a student attends, say, the year-end school picnic or the prom, and gets COVID. So I am thinking that we should develop some sort of waiver form. Something like:
I [your name here] give my child [name] permission to attend [name of event]. Furthermore, I acknowledge that there is a significant risk that my child may contract COVID both in and outside of school and school activities. I hereby waive any claim against the Nutmeg Public Schools and hold said Nutmeg Public Schools harmless from any liability should my child contract COVID anywhere or anytime.
I am especially proud of the “anywhere or anytime” piece because we can never be sure where someone contracts COVID, and I don’t want parents to claim that it is somehow our fault if their child gets COVID.
Given that you went to law school and I only thought about it, does Legal Mailbag have any suggestions to fine-tune my waiver form?
Washing My Hands of COVID
Your looking ahead to year-end events is an inspiration to those of us who procrastinate. But you should stick to planning and stop playing lawyer. Waivers of future claims are against public policy in Connecticut, and your waiver-of-liability form would be unenforceable. But you are on the right track in thinking about some form of notification to parents.
As you may well know, school districts are not like insurance companies. Insurance companies have to pay out when bad things happen: to your car, your house or whatever they insure. By contrast, school officials are responsible for harm that comes to a student at school only under specified circumstances.
Liability for negligence can be imposed on school officials when four conditions are met: (1) there is a duty of care, (2) the school official breaches the duty, (3) that breach causes an injury, and (4) such injury was foreseeable. School officials typically have a duty to maintain a safe school environment, and a failure to do so may result in liability for negligence if a student is injured as a result (though personal liability is highly unlikely because Conn. Gen. Stat. § 10-235, the indemnification statute, generally protects school officials from liability when claims are made). However, there are situations in which students face certain risks (think football). If students and their parents are properly warned of the risk, they assume the risk, and if the student is injured, school officials will not be liable because they provided notice of the risk and thus did not breach any duty of care.
Applying this analysis to your situation, providing notification to students and their parents of the risks of COVID at these school events would be reasonable. Indeed, where there is a special risk, parents can argue that not informing them of that risk is a breach of the duty of care. By contrast, when school officials provide notice of a risk, students and their parents can then make an educated decision whether to participate in an activity or attend an event. While a permission slip cannot operate as a waiver of liability claims, it can put students and parents on notice of specific risks and thereby reduce the likelihood of a liability claim.
Finally, there is more to the story of liability claims against school districts. Public officials who exercise discretion on behalf of the public are often immune from liability claims under the theory of governmental immunity, which derives from the long-established doctrine of sovereign immunity (“the King can do no wrong”). However, the Connecticut Supreme Court announced an exception to governmental immunity in 1995, holding that school officials can be liable for negligence if students are injured when they can be considered members of an identifiable class of persons subject to immediate harm. While the courts have subsequently narrowed the scope of this exception to governmental immunity, the best approach for school officials is to avoid situations in which liability claims may be made. Accordingly, warning students and their parents of special risks in specific situations is advisable.
Originally appeared in the CAS Weekly Newsletter.