Transcript Liability Waiver 101 - Schools Excess Liability Fund

Liability Waiver 101
Are Waivers Worth the Paper?
When Bad Things Happen to
Good Schools 2007
October 23rd through 25th
Sacramento – Moreno Valley – Pomona
Liability Waiver 101
Are Waivers Worth the Paper?
City of Santa Barbara v. Superior Court
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CA-Supreme Court issued legal opinion in July 2007 addressing the enforceability of
waivers
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Their position was that waivers cannot protect sports and recreation sponsors from
“gross negligence” liability (defined as either a “want of even scant care” or “an
extreme departure from the ordinary standard of conduct”)
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The court’s ruling implies agreements trying to cover more than ordinary negligence
(i.e., using language such as “any and all negligence” and/or “all forms of
negligence”) are unenforceable
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Per the court, the viability of minor agreements (agreements signed by parents on
behalf of minor children) were not presently at issue
•
Proactive risk management suggests that minor agreements will face significant
challenges in the future as well
SOURCE: http://defendingsportsblog.com/2007/07/17/breaking-news-california-waivers-take-a-big-hit/
Liability Waiver 101
Are Waivers Worth the Paper?
Remember the “Best Practice”
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It is not IF you’ll be sued, but rather WHEN you’re sued . . .
how prepared will you be?
Or, even better, what can you do TODAY to prevent a problem
tomorrow
Yes—they are great tools
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Help foster awareness and educate individuals to the potential risk of
an activity
Assist individuals in deciding whether or not they want to participate
in activity
May deter potential plaintiff and/or counsel from pursuing legal action
Are valid and reliable tools when written and used correctly
Other terms: exculpatory clauses; releases; hold harmless clauses
Liability Waiver 101
Are Waivers Worth the Paper?
Enforceable Waivers – The Basics
1. Should be drafted correctly and used appropriately
2. Should be clear and unambiguous; informative of risks and dangers
3. Should be written on a separate sheet of paper – preferably white for
clarity
4. Should be written in a clearly readable font type and size
5. Should be signed voluntarily after a sufficient period for review,
questions, and contemplation
Liability Waiver 101
Are Waivers Worth the Paper?
Enforceable Waivers – The Basics
6.
Should not force individuals to give up their legal rights
7.
Do not cover “gross” or intentional negligence
8.
Should be stored by sponsor until expiration of statue of limitations
period
9.
Should be stored in an organized manner (i.e., by activity date in
alphabetical order by name of participant)
10. Should have a “No Tolerance” policy on waiver requirements
Liability Waiver 101
Are Waivers Worth the Paper?
Enforceable Waivers – Other Notables
•
WET’R – WARN, EXPLAIN, TEACH, and REVIEW
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Provide adequate time for participants to appreciate the potential
risks and dangers of the activity
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Communicate the scope of risks associated with the activity and the
assumption of risks by the participants
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Take the time to educate participants about the specific risks of
injuries associated with the activity
•
Additional information about the activity should be provided separate
of the waiver
Liability Waiver 101
Are Waivers Worth the Paper?
Enforceable Waivers – Other Notables
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If it is a clear waiver, signed voluntarily, and applicable to a
negligence claim, there is a good chance the court will use it to
dismiss (or at least limit) the lawsuit
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Should not be the “fine print” in a larger publication
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Participants should have “knowledge of the effect” of the waiver—
should never be blindsided
Liability Waiver 101
Are Waivers Worth the Paper?
Scenario #1
Parents of minor (age 12) student attending private elementary school signed
waiver annually, required for enrollment. Waiver generally released school
from any injuries resulting from negligence (not defined). Parent was late
picking up student after school. All teachers and staff left, except one employee
who stayed inside to complete duties; practice was to leave any student over
age 10 on his or her own with instructions to stay at certain location until
pickup. All parents were informed of this practice and routinely picked up stray
children when other parents did not timely arrive. This day, several students
were present and got into a pushing match, resulting in one falling into the
street and being struck by car driven by a parent of another student. Parents of
injured student sued school, driver and student who participated in
pushing. Waiver was ruled inadmissible to defend school, as the absence of
any staff member constituted gross negligence, which could not be waived.
SOURCE: http://classweb.gmu.edu/jkozlows/leon.htm
Liability Waiver 101
Are Waivers Worth the Paper?
Scenario #1 continued . . .
Even if waiver had adequately informed parents of risk of injury due to practice
of leaving kids alone with instructions to stay in place, it would not have been
sufficient due to lack of supervision; school had duty to protect against ordinary
risks and simply informing parents that school would not be responsible for late
pickups could not eliminate duty.
SOURCE: http://classweb.gmu.edu/jkozlows/leon.htm
Liability Waiver 101
Are Waivers Worth the Paper?
Scenario #1 continued . . .
Best practice would have been for school to assign staff member to supervise
late pickups and to fine parents for cost of staff having to stay late.
Waiver combined with best practice could have protected school from liability
for failure to protect student, if staff member had intervened and attempted to
halt pushing that resulted in injury.
SOURCE: http://classweb.gmu.edu/jkozlows/leon.htm
Liability Waiver 101
Are Waivers Worth the Paper?
Scenario #2
High schools bands meet annually for competition in central location, with
band members traveling on their own school's buses to competition
site. Competition is sponsored by state association of school bands. All schools
participating sign waivers, as do parents of each minor student band member
participating. Waiver releases association from all claims arising from ordinary
negligence. Association rents football stadium for competition. A group of
students leaves the stadium, during a break, and dashes across a busy street, to
buy fast food. Returning, they also jaywalk and are struck by traffic. One
student suffers permanent brain damage and parents sue their own school, the
band association and the owner of the football stadium. Waiver is found
insufficient to defend against claim of gross negligence, alleged due to failure of
association to adequately supervise and prevent minor student from jaywalking
and being hit by traffic.
SOURCE: http://classweb.gmu.edu/erodger1/prls560/content/p%26r396.htm
Liability Waiver 101
Are Waivers Worth the Paper?
Scenario #2 continued . . .
Waiver cannot protect against gross negligence, which will be alleged if minor
student is injured in non-sanctioned, unrelated activity w/o supervision.
Owner of football stadium was not mentioned in the waiver, had no
contractual or other legal duty to minor, yet was not dismissed from the lawsuit
until settlement some years later.
Adequate supervision to prevent careless actions (jaywalking across busy street)
is required even with well-worded waiver.
SOURCE: http://classweb.gmu.edu/erodger1/prls560/content/p%26r396.htm
Liability Waiver 101
Are Waivers Worth the Paper?
Scenario #3
Psychology students at university obtain permission from teachers in local high
school to administer survey to classroom, to get anonymous data on teen-age
use of drugs, alcohol and tobacco, as well as birth control and sexual
activity. Students sign waiver which promises confidentiality of results,
contemplating they will not turn information over to law enforcement. After
survey is administered, students are upset and complain to parents. Parents
demand information on their own student's responses and also sue for
violation of privacy rights. Waiver was found to be defective because it
required minor students to participate in a classroom activity unrelated to the
subject matter of the class; required minors to disclose information of a personal
nature, whether they wanted to or not, and without knowledge of parents.
SOURCE: http://classweb.gmu.edu/erodger1/prls560/content/p%26r396.htm
Liability Waiver 101
Are Waivers Worth the Paper?
Scenario #3 continued . . .
Minors cannot waive right to privacy and be forced to participate in survey of
such a personal nature, in a classroom setting, without parental consent.
Promise of confidentiality cannot be kept, due to rights of parents over rights of
minor children.
Societal benefit of such research does not outweigh individual parental rights
to know and refuse to consent to minor student participation in survey of
intimate activity.
No amount of detailed explanation on waiver form could result in valid, lawful
waiver, as the rights of parents to withhold consent were violated by not
informing parents of intended survey.
SOURCE: http://classweb.gmu.edu/erodger1/prls560/content/p%26r396.htm
Liability Waiver 101
Are Waivers Worth the Paper?
Be Mindful . . .
• There is no perfect waiver or model waiver.
• Each situation has unique risks and settings, all of which must be spelled out
in detail in order for a waiver to "speak for itself".
• A waiver must be prominently displayed.
• The individuals responsible for signing a waiver must have adequate time to
consider the risks and to decide (1) against participation, (2) knowingly
assume risks, or (3) ask for more instruction/information.
• The BEST use of the waiver is to inform, educate, and ensure the
participant and parents knowingly, willingly, and without requirement,
participate in an adequately supervised activity.
Liability Waiver 101
Are Waivers Worth the Paper?
In Review . . . “WET’R”
Warn – Explain – Teach – Review
• Provide adequate time for participants to appreciate the potential risks
and dangers of the activity
• Communicate the scope of risks associated with the activity and the
assumption of risks by the participants
• Take the time to educate participants about the specific risks of injuries
associated with the activity
• Additional information about the activity should be provided separate of
the waiver
Liability Waiver 101
Are Waivers Worth the Paper?
In Review . . .
1.
Should be drafted correctly and used appropriately
2.
Should be clear and unambiguous; informative of risk and dangers
3.
Should be written on a separate sheet of paper – preferably white for clarity
4.
Should be written in a clearly readable font type and size
5.
Should be signed voluntarily after a sufficient period for review, questions, and contemplation
6.
Should not force individuals to give up their legal rights
7.
Do not cover “gross” or intentional negligence
8.
Should be stored by sponsor until expiration of statue of limitations period
9.
Should be stored in an organized manner (i.e., by activity date in alphabetical order by name of
participant)
10.
Should have a “No Tolerance” policy on waiver requirements
Liability Waiver 101
Parental/Guardian Communication Guidelines
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WET’R – WARN, EXPLAIN, TEACH, and REVIEW
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Be factual
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Avoid using acronyms or jargon—if you must use them, explain them
Communicate the scope of risks associated with the activity and the assumption of risks by the parents
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Take the time to educate parents about the specific risks of injuries associated with the activity
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Outline for parents the safeguards and education process to be taken with participants
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Provide adequate time for parents to appreciate the potential risks and dangers of the activity
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Parents should have “knowledge of the effect” of waiver associated with activity
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Provide alternatives for parents to ask and receive answers to their questions
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Be mindful to take appropriately steps to communicate with families that speak English as a second language
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Additional information about the activity should be provided to parents separate of the waiver