School permission slips should not have waivers of liability

As regular readers of this blog know, requiring parents to sign releases of liability for their children to participate in activities is a pet peeve of mine.  To be clear, I have no problem with a limited waiver with respect to a slightly dangerous activity itself.  For example, if my child is doing a gymnastics program signing a waiver releasing liability if the child falls off a balance beam is fine.  But signing a waiver releasing liability if a balance beam falls on a child is another matter altogether. 

The Boston Public Schools require parents to sign comprehensive waivers of liability in order for their children to participate in field trips.  Last night I testified at the open portion of the Boston School Committee meeting to urge that the waiver requirement be removed.  The following is the written information I gave to the School Committee members to accompany my testimony (somewhat redacted to protect the privacy of my children):

RELEASES OF LIABILITY IN FIELD TRIP PERMISSION SLIPS

THE ISSUE:  Boston public school permission slips require parents to sign a release of all rights if their child is injured on a field trip. 

The release includes “any acts of negligence or otherwise from the moment that my student is under BPS supervision and throughout the duration of the trip.” 

 In the release, parents agree “to indemnify and hold harmless BPS and any of the individuals and other organizations associated with the BPS in this field trip from any claim or liability arising out of my child’s participation in this field trip.” 

THE LANGUAGE IN THE FIELD TRIP PERMISSION SLIP (FROM SUPERINTENDANT’S CIRCULARS #CAO-23 and 24, 2012-2013) (attached):

I assume full responsibility for any risk of personal or property damages arising out of or related to my/my child’s participation in this field trip, including any acts of negligence or otherwise from the moment that my student is under BPS supervision and throughout the duration of the trip. I further agree to indemnify and to hold harmless BPS and any of the individuals and other organizations associated with BPS in this field trip from any claim or liability arising out of my/my child’s participation in this field trip.

WHY THIS IS A PROBLEM: 

If a child is injured as a result of negligence (unreasonable carelessness) of the BPS or one of its partners, the child should be entitled to the same recovery under our legal system that he or she would be entitled to if injured any place else.

 

Example 1:  If a bus driver falls asleep at the wheel and the bus hits a student standing on a sidewalk, that student is entitled to recover his or her fair damages from the bus company and its insurer.  But if a bus driver falls asleep at the wheel and students who are on the bus for a field trip are injured, they are not entitled to recover any damages because their parents signed the release of liability. 

 

Example 2:  If  a student slips on ice on steps leading to a school building and is injured, whether or not he or she can recover damages will depend on whether the ice was on the steps as a result of negligence (unreasonable carelessness).  But if a student slips on ice on steps leading to a building at a camp the student is attending for a field trip, there is no recovery even if the ice was there because of the negligence of the camp. 

 

THE SOLUTION:

 

Rather than requiring that parents sign a release, the BPS should require that its partners have adequate insurance to cover injuries caused by negligence. 

 

I have spoken with BPS field trip partners who have adequate insurance and who do not agree with the release requirement. 

 

ACTIONS TO DATE

 

I have raised this issue with the BPS legal department.  Tim Nicolette, chief of staff of the superintendent’s office, responded to me with a telephone call, in which Doug Heim of the legal department and Bethany Wood (Director of Global Education; BPS staffer in charge of permission slips) also participated.  Tim Nicolette stated that, after research, he will not recommend that the release be deleted from the permission slip forms.  He gave the following reasons:

 

1.       Releases of liability are legal; do not release liability for gross negligence; and some other school systems use them. 

 

Response:    Those facts are irrelevant.  This is not a legal issue; it is a moral one.  It is impossible to prevent all accidents.  When the BPS is entrusted with children, in addition to using its best efforts to prevent negligent accidents, it needs to act responsibly in the event that an accident happens.  That means allowing injured students the same recourse that any other person would have if they are injured as a result of negligence.

 

I researched permission slips used in other school systems.  Many contain no release of liability.  (Permission slips from Brockton and Chicago are attached.)  New York City uses a very limited release, which says “I agree and understand that I am responsible for the actions of my child.  I release the school from all claims and liability that arise in connection with the trip, except if due to the negligence of school officials.”  (Attached.) 

 

Even if many other school systems did use comprehensive releases, it should not matter.  Boston should take a leadership role on this issue and do the right thing. 

 

2.       Children of parents who do not want to sign the release can opt out of field trips with no effect on their grades.

 

Response:  That position is unreasonable.  It gives different rights to children of parents who can read and understand the legal ramifications of the release than to children of parents who cannot do so.  Moreover, field trips are an integral part of school curriculums and it is unfair to require families to give up basic legal rights in order to participate in field trips. 

 

3.       The release protects the BPS (through the indemnity provision) if a student on a field trip injures a third party. 

 

Response:  The BPS should not seek to “pass the buck” on a claim of negligent supervision.  Moreover, this provision is wholly ineffective with respect to a claim by a third party unless the student’s family happens to be rich or have other resources.  It makes much more sense for the BPS to have insurance or self-insurance.

 

CONCLUSION

 

The release of liability should be removed from field trip permission slips.  Instead, the BPS should require that its partners have adequate insurance to protect students in the event that they are injured as a result of negligence.

 

REQUEST FOR RESPONSE

 

I request that the school committee get back to me with a response by Wednesday, March 13, 2013.  

 

ABOUT ME

I am a lawyer who specializes in liability insurance issues (“insurance coverage”).  As such, I spend a lot of time thinking about the purposes served by insurance,  about how risk should be reasonably delegated, and about the devastating impact on individuals and families when risk is not delegated reasonably.      

Amendments to the Minimum Maintenance Standards - Part 3

This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.

Part 3:  New Patrolling Requirements

The MMS previously required routine road patrols and, during the winter maintenance season, required additional patrols of representative highways, as necessary, to check for snow and ice.  There has been no change to the routine patrolling requirement but the MMS now provide that if the weather monitoring discussed above indicates that there is a substantial probability of snow accumulation, ice formation or icy roadways, then municipalities must patrol representative highways, at intervals deemed necessary by the municipality, to check for snow and ice.  There is no change to the provision describing what patrolling consists of and by whom it can be done. 

U.S. District Court holds that exclusion for loss involving a particular loan excludes coverage for claims that the loan was misappropriated

Marcia and Joseph Valenti donated $500,000 to the Clark School for Creative Learning.  They later sued the school and Jeffrey Clark, the school's director, alleging that the school had not carried through with promises made by Clark in order to induce their gift.  Specifically, they alleged that Clark promised to convey to them as security for the gift a security interest in a parcel of real property on which the school is situated, but that the school never acquired rights to the land; and that the funds would be used to develop a new facility for the school's high school, but that Clark conveyed a large portion of the funds to his mother and sister, purportedly as repayment for loans to the school. 

The school's insurer, Philadelphia Indemnity Insurance Company, denied coverage on the ground that the allegations of the complaint fell within the policy's exclusion for known circumstances revealed in financial statement.  The exclusion excluded claims "arising out of, directly or indirectly resulting from or in consequence of, or in any way involving" any circumstances disclosed in a financial statement that was attached to the policy.  That financial statement stated that the school was the recipient of a major unrestricted gift totaling $500,000.

In Clark School for Creative Learning, Inc. v. Philadelphia Indemnity Ins. Co., 2012 WL 6771835 (D. Mass.),  the United States District Court for the District of Massachusetts held that the claims were excluded.  The court discretely analyzed the phrases "arising out of," "directly or indirectly resulting from or in consequence of," and "in any way involving," and held that under any of the phrases the exclusion applied. 

Amendments to the Minimum Maintenance Standards - Part 2

This week we continue our review of the amendments to the Minimum Maintenance Standards which came into effect on January 25, 2013.

Part 2: New Requirement to Monitor Weather

The MMS did not previously require weather monitoring, although municipalities generally did so as part of winter maintenance operations.  The MMS now require municipalities to monitor the weather, both current and forecast for the next 24 hours.  From October 1 to April 30, weather must be monitored three or more times per day, at intervals determined by the municipality.  From May 1 to September 30, weather must be monitored once per day.  This amendment is clearly a response to Giuliani, in which the municipality was faulted for failing to monitor the weather and deploy resources in time to avoid the formation of ice on the road. 

The MMS definition of weather as “air temperature, wind and precipitation” tells municipalities what to monitor but the MMS do not state how this is to be done.  In addition, the MMS allow municipalities to determine the intervals at which the weather is monitored.  While these factors will allow monitoring systems to reflect local conditions, including budgetary constraints, we can expect to see claims challenging municipal decisions about the intervals at which weather is monitored and the methods used to do so.

Summary judgment to insurer reversed in Betty Anne Waters civil lawsuit

The story of how Betty Anne Waters obtained a GED, a college degree, and a law license all for the purpose of exonerating her brother, Kenneth Waters, who was wrongfully convicted of murder, was publicized in the movie Conviction. 

After Kenneth died in an accident six months after Betty Anne won his release from prison, she sued on behalf of his estate the town of Ayer, Massachusetts for unconstitutional and tortious conduct resulting in Kenneth's wrongful conviction and incarceration.  That lawsuit resulted in a settlement in which the town assigned to Betty Anne its rights against its insurer, Western World Insurance Company.  (In addition, the estate received $3.4 million from other insurers.)

Betty Anne then sued as assignee Western World, alleging that it breached its duty to defend the town.  The Massachusetts Superior Court granted summary judgment to Western World.  In Waters v. Western World Ins. Co., 2013 WL 499215 (Mass. App. Ct.) (unpublished), the Massachusetts Appeals Court reversed the granting of summary judgment.

The law enforcement officers liability policies Western World issued to the town of Ayer were in effect after Kenneth's conviction.  They provided coverage for negligent acts, errors or omissions, including for false arrest, false imprisonment, and malicious prosecution.  The policy had an exclusion for willful violations of a penal statute or ordinance committed by or with the knowledge or consent of the insured.

The underlying complaint alleged that the town had a policy, custom and practice, continuing throughout Kenneth's incarceration, of failing to adequately train and supervise employees with respect to the disclosure of exculpatory evidence; that it failed to undertake any reinvestigation to discover and remedy the fact that undisclosed exculpatory evidence existed; and that it ignored its affirmative duty to disclose information that would have demonstrated Kenneth's innocence.

The Massachusetts Appeals Court held that those allegations implicate acts, errors and omissions during the Western World policy period, and that they leave open the potential for liability to be predicated on covered negligence.  In a dig, the court cited to another case in which Western World, as a party, established that supervisory liability under 42 U.S.C. s. 1983 (the federal civil rights act) may sound in negligence. 

The court held that Western World could not establish based upon the allegations of the underlying complaint that the exclusion for willful conduct excluded coverage.  The complaint contained no explicit allegations of violation of a penal statute or that any insured was ever charged with or convicted of criminal conduct in relation to the matter. 

Amendments to the Minimum Maintenance Standards - Part 1

The Minimum Maintenance Standards under the Municipal Act, 2001 were amended by Ontario Regulation 47/13, which came into effect on January 25, 2013.  Many of the amendments are a response to the Court of Appeal decision in Giuliani v. Halton (Regional Municipality), [2011] O.J. No. 5845 (C.A.) in which the court’s interpretation of the snow clearing and icy roadways standards limited their use as a defence to civil actions.  The amendments also provide more specific guidance to municipalities whose systems of winter road maintenance are based on the Minimum Maintenance Standards.  

In our next series of posts, we will be reviewing the changes to the MMS.

 

Part 1: New Definitions Added to Section 1

 

Section 1 of the MMS now contains the following definitions:

• “Ice” is defined as “all kinds of ice, however formed”.  Ice was not previously defined.
• “Snow accumulation” is defined as the natural accumulation of newly-fallen snow, wind-blown snow and/or slush that covers more than half a lane width of a roadway.  This definition was previously contained in the snow accumulation standard in section 4 of the MMS, which has been replaced as discussed below.
• “Substantial probability” is defined as “a significant likelihood considerably in excess of 51 per cent”.  This definition relates to patrols and maintenance activities that are done in anticipation of snow accumulation or ice formation, discussed below.  This definition may be the subject of debate in future civil cases, as it does not specify how much more than 51 per cent is “considerably in excess”.
• “Weather” is defined as “air temperature, wind and precipitation”.  Weather was not previously defined.

Hurricane deductibles

AgentsofAmerica.Org has an interesting article called "The Use of Hurricane Deductibles in Northeast States."  It talks about ramifications of deductibles applying only to weather events formally labeled hurricanes.

Examination for Discovery: Attendance of Parties

When a party has selected an individual to be examined on behalf of a corporation, is another corporate representative entitled to attend to observe discoveries?

In Cody v. Culley 2013 ONSC 199 (S.C.J.), the issue was whether a corporate representative could attend the examination for discovery of the individual chosen to be examined by the opposing party.  The plaintiffs argued that a corporation cannot have a different representative attend discoveries when the adverse party has selected a representative.  Master Glustein permitted the representative to attend.  A corporation has the right to attend examinations for discovery as an independent legal entity.  The corporate representative chosen by the adverse party is not required to have any decision-making power and a corporation may want someone at the discoveries who can decide litigation issues or at least report back to management for such decisions.  The attendance of such an individual could assist in the settlement process or provide more informed instructions to counsel.  The individual would not be attending to be examined, but to be the person who acts on behalf of the corporation to assist in the litigation decision-making process.

This decision could be useful to those representing corporate entities such as municipalities who wish to have a member of the Corporation observe discoveries to get a sense not only what the evidence might be but also how effective the witness may be.