Tuesday, April 30, 2013
Saturday, April 27, 2013
One more thing on waivers of liability in field trip permission slips
My testimony before the Boston School Committee meeting is here. My testimony starts around 23:35. Boston School Committee member Mary Tamer's exchange with legal advisor Alissa Ocasio begins at around 3:04:18. They agreed that Ms. Ocasio would provide the school committee with information about what other Massachusetts school districts do with respect to waivers of liability in permission slips. As far as I know Ms. Ocasio has not responded to that request yet. (But the answer is, it varies. Some districts use waivers and others don't. However, that is irrelevant. Other school districts should look to Boston, not the other way around.)
See my other posts on the issue here, here, and here.
See my other posts on the issue here, here, and here.
Thursday, April 25, 2013
Summary of Massachusetts Lawyers Weekly article on permission slip waivers
Yesterday's post noted that Massachusetts Lawyers Weekly published an article on my fight to have the Boston Public School system remove its waiver of liability from its field trip permission slips.
In response to requests from readers of this blog who do not subscribe to Lawyers Weekly, this is a summary of the article.
Lawyers Weekly nicely detailed my point of view on the issue, which I posted here. Lee McGuire of the BPS indicated that the BPS is not about to make any changes (but I note that the Boston School Committee requested additional information from the BPS legal department which, to the best of my knowledge, has not yet been presented). McGuire cited a 2002 Supreme Judicial Court case called Sharon v. City of Newton. In my opinion McGuire miscited the opinion, which addresses voluntary afterschool activities (in that case, cheerleading), and stated:
Throughout my dealings with the BPS, they have gone out of their way to assure me that my children will not be "penalized" if I choose not to have them participate in field trips because I don't want to sign the release of liability. They are doing that to get around the potential exception for public education activities stated in Sharon, trying to put field trips in the category of voluntary afterschool activities rather than an essential part of the public school curriculum.
As the article notes, both the BPS and I agree that the field trips are a very important part of the public education experience. In third grade at my kids' school, for example, the students study pilgrims. (The school does a fantastic job of integrating the point of view of Native Americans into the curriculum, by the way, including visits with members of the Wampanoag tribe.) A central feature of that course of study is a field trip to Plimoth Plantation. The attempt to put that field trip in the category of an afterschool activity rather than an essential part of the curriculum is flatly wrong, and I don't believe that a Massachusetts court would uphold that attempt. But Massachusetts courts have not ruled on the question of whether releases for essential public education activities are binding.
The article notes that I write on field trip permission slips that I am signing the waiver under protest. I don't want anyone to think that I am giving legal advice that such a notation would have any effect on whether or not the waiver is binding. But if we could get a significant group of parents to do it, the BPS might (or might not) take notice.
Finally, the article quotes me as saying that "I know that at some point someone is going to slip up and someone is going to get hurt." I did say that the reporter, but I regret it. What I should have said is that statistically it is likely that at some point in time some kid on a BPS field trip will be injured because of the negligence of the BPS or one of its partners. I am fully confident in both the BPS and its partners, but as a civil litigator I know that accidents happen. My point is that if an accident happens when a child is in the care of the BPS, whether on a field trip or otherwise, that child should have the same rights as anyone else. The BPS and the students in its care are best protected by insurance, not waivers of liability.
In response to requests from readers of this blog who do not subscribe to Lawyers Weekly, this is a summary of the article.
Lawyers Weekly nicely detailed my point of view on the issue, which I posted here. Lee McGuire of the BPS indicated that the BPS is not about to make any changes (but I note that the Boston School Committee requested additional information from the BPS legal department which, to the best of my knowledge, has not yet been presented). McGuire cited a 2002 Supreme Judicial Court case called Sharon v. City of Newton. In my opinion McGuire miscited the opinion, which addresses voluntary afterschool activities (in that case, cheerleading), and stated:
We have not had occasion to rule on the validity of releases required in the context of a compelled activity or as a condition for the receipt of essential services (e.g., public education, medical attention, housing, public utilities), and the enforceability of mandatory releases in such circumstances might well offend public policy. . . . In this case, Merav's participation in the city's extracurricular activity of cheerleading was neither compelled nor essential, and we conclude that the public policy of the Commonwealth is not offended by requiring a release as a prerequisite to that participation.(Emphasis added.)
Throughout my dealings with the BPS, they have gone out of their way to assure me that my children will not be "penalized" if I choose not to have them participate in field trips because I don't want to sign the release of liability. They are doing that to get around the potential exception for public education activities stated in Sharon, trying to put field trips in the category of voluntary afterschool activities rather than an essential part of the public school curriculum.
As the article notes, both the BPS and I agree that the field trips are a very important part of the public education experience. In third grade at my kids' school, for example, the students study pilgrims. (The school does a fantastic job of integrating the point of view of Native Americans into the curriculum, by the way, including visits with members of the Wampanoag tribe.) A central feature of that course of study is a field trip to Plimoth Plantation. The attempt to put that field trip in the category of an afterschool activity rather than an essential part of the curriculum is flatly wrong, and I don't believe that a Massachusetts court would uphold that attempt. But Massachusetts courts have not ruled on the question of whether releases for essential public education activities are binding.
The article notes that I write on field trip permission slips that I am signing the waiver under protest. I don't want anyone to think that I am giving legal advice that such a notation would have any effect on whether or not the waiver is binding. But if we could get a significant group of parents to do it, the BPS might (or might not) take notice.
Finally, the article quotes me as saying that "I know that at some point someone is going to slip up and someone is going to get hurt." I did say that the reporter, but I regret it. What I should have said is that statistically it is likely that at some point in time some kid on a BPS field trip will be injured because of the negligence of the BPS or one of its partners. I am fully confident in both the BPS and its partners, but as a civil litigator I know that accidents happen. My point is that if an accident happens when a child is in the care of the BPS, whether on a field trip or otherwise, that child should have the same rights as anyone else. The BPS and the students in its care are best protected by insurance, not waivers of liability.
Wednesday, April 24, 2013
City Not Liable for Icy Boulevard
The City of London has successfully defended a slip and fall action that occurred following a winter storm. In Bondy v. London (City), [2013] O.J. No. 1281 (S.C.J.), the plaintiff slipped and fell on the paved portion of the boulevard abutting the city sidewalk, which was used to access her driveway. The night before the plaintiff fell there was a heavy freezing rain storm, which continued throughout the night and into the morning. Schools were closed and radio announcements recommended citizens stay off roads and sidewalks. The adjacent property owned salted the sidewalk but not the boulevard. The City decided to call in its sidewalk equipment operators at midnight and they were deployed at 4:30 a.m. In the area of the plaintiff's fall, operators were deployed from 7:30 a.m. to 5:30 p.m., with the route taking 12-14 hours to complete.
The case involved a number of issues, including whether the boulevard qualified as an untravelled portion of the highway, whether adjacent property owner was liable for failing to salt the boulevard, whether the Municipal Act or Occupier's Liability Act applied, and the standard of care for the municipality. Justice Gorman held that the boulevard was not part of the untravelled portion of the highway. In addition, the City could not deflect liability onto the adjacent property owner in the circumstances, as they did not exercise control over the area.
Ultimately, Justice Gorman held that the City had met its standard of care. It had complied with the Minimum Maintenance Standards for icy roadways. The plaintiff was entitled to expect a highway to be in a good condition, but "when the weather is so treacherous as to require the broadcast of public warnings, one travels at one's peril". Although the action was dismissed, the decision that the boulevard was not part of the untravelled portion of the highway poses a problem: are municipalities now expected to salt these areas?
The case involved a number of issues, including whether the boulevard qualified as an untravelled portion of the highway, whether adjacent property owner was liable for failing to salt the boulevard, whether the Municipal Act or Occupier's Liability Act applied, and the standard of care for the municipality. Justice Gorman held that the boulevard was not part of the untravelled portion of the highway. In addition, the City could not deflect liability onto the adjacent property owner in the circumstances, as they did not exercise control over the area.
Ultimately, Justice Gorman held that the City had met its standard of care. It had complied with the Minimum Maintenance Standards for icy roadways. The plaintiff was entitled to expect a highway to be in a good condition, but "when the weather is so treacherous as to require the broadcast of public warnings, one travels at one's peril". Although the action was dismissed, the decision that the boulevard was not part of the untravelled portion of the highway poses a problem: are municipalities now expected to salt these areas?
Massachusetts Lawyers Weekly covers my efforts to remove release of liability from field trip permission slips
Thursday, April 18, 2013
The Agony of the Collision
A recent motion decision dealt with the standard of care in emergency situations.
In Dubois v. Ford Credit Canada Leasing, 2012 ONSC 7311 (S.C.J.), the plaintiff was a passenger in a vehicle being driven by Gunn. An oncoming vehicle crossed into Gunn's lane and he swerved left to avoid the accident. Unfortunately, the other driver also swerved and they collided.
Gunn brought a motion for summary judgment on the basis that his actions occurred in an emergency situation and he was not negligent on the basis of the "agony of the collision" principle. Justice Spence reviewed three formulations of the test for negligence in an emergency:
1. Which focuses on whether the driver was driving with the skill and care expected of a reasonable driver at the time and place in issue;
2. Which provides that the driver has a duty to extricate himself and his passengers from the situation with safety if possible, but his conduct is not to be judged by the standards involving deliberation and the opportunity for careful and conscious decision. He is not negligent for failing to adopt the best course of action in the light of hindsight;
3. Which provides that if driver A loses control and seeks to apportion blame on B, A must show that B became aware or should have become aware and had an opportunity to avoid the accident.
Justice Spence concluded:
[39] The conclusion to be drawn from the above analysis is that the test to be applied is properly set out in the first formulation on the understanding that, as emphasized in the second formulation, a driver in the “agony of a collision” generated by an emergency, may properly be considered to have acted reasonably even though his conduct might not be considered reasonable if it had occurred in circumstances that offered a reasonable time for decision.
Justice Spence dismissed the motion for summary judgment, as there were competing expert opinions and the potential for unfairness to the plaintiff, who was an innocent passenger. Although the decision is an interesting summary of the "agony of the collision" principles, it also imports a fairness component, which introduces a new factor in the analysis.
In Dubois v. Ford Credit Canada Leasing, 2012 ONSC 7311 (S.C.J.), the plaintiff was a passenger in a vehicle being driven by Gunn. An oncoming vehicle crossed into Gunn's lane and he swerved left to avoid the accident. Unfortunately, the other driver also swerved and they collided.
Gunn brought a motion for summary judgment on the basis that his actions occurred in an emergency situation and he was not negligent on the basis of the "agony of the collision" principle. Justice Spence reviewed three formulations of the test for negligence in an emergency:
1. Which focuses on whether the driver was driving with the skill and care expected of a reasonable driver at the time and place in issue;
2. Which provides that the driver has a duty to extricate himself and his passengers from the situation with safety if possible, but his conduct is not to be judged by the standards involving deliberation and the opportunity for careful and conscious decision. He is not negligent for failing to adopt the best course of action in the light of hindsight;
3. Which provides that if driver A loses control and seeks to apportion blame on B, A must show that B became aware or should have become aware and had an opportunity to avoid the accident.
Justice Spence concluded:
[39] The conclusion to be drawn from the above analysis is that the test to be applied is properly set out in the first formulation on the understanding that, as emphasized in the second formulation, a driver in the “agony of a collision” generated by an emergency, may properly be considered to have acted reasonably even though his conduct might not be considered reasonable if it had occurred in circumstances that offered a reasonable time for decision.
Justice Spence dismissed the motion for summary judgment, as there were competing expert opinions and the potential for unfairness to the plaintiff, who was an innocent passenger. Although the decision is an interesting summary of the "agony of the collision" principles, it also imports a fairness component, which introduces a new factor in the analysis.
Saturday, April 6, 2013
What seemed like the circular firing squad of cost-savings measures is really a Christmas savings account masquerading as free money
When a friend of mine sent me a tip that the Davenport, Iowa community school district planned to take a one month "insurance holiday," I thought I was all set with a snarky and indignant post. A month without insurance? That's self-insurance, not always a terrible idea for a local government -- unless you've already entered into an insurance contract under which you are required to, you know, pay your premiums and all.
But as I looked into it, my snark gave way to confusion.
According to this article from the Quad City Times, the cost savings would be $2 million. According to its website, the school district has has 15,841 students and 2,200 employees. I'm not an underwriter, but $24 million a year in insurance to protect 18,000 people (plus various bystanders)? Keeping in mind that the premium is much lower than the insurance limit -- otherwise, what's the point? -- that's some serious disaster planning. Unless the district is talking about a holiday from health insurance for its employees, in which case the savings is about $900 a month per employee, which seems like a typical premium. Except that then all the employees will quit (or get too sick to work), which doesn't seem like good long-term planning.
And then there's this quote from the superintendent:
But as I looked into it, my snark gave way to confusion.
According to this article from the Quad City Times, the cost savings would be $2 million. According to its website, the school district has has 15,841 students and 2,200 employees. I'm not an underwriter, but $24 million a year in insurance to protect 18,000 people (plus various bystanders)? Keeping in mind that the premium is much lower than the insurance limit -- otherwise, what's the point? -- that's some serious disaster planning. Unless the district is talking about a holiday from health insurance for its employees, in which case the savings is about $900 a month per employee, which seems like a typical premium. Except that then all the employees will quit (or get too sick to work), which doesn't seem like good long-term planning.
And then there's this quote from the superintendent:
We have an insurance fund and over the years it has built up. so what we would do is use some of that build up rather than taking money out of our general fund to pay a month’s premium.So, it's not really a cost-saving measure at all. Or an insurance holiday. The district was putting money in an account for insurance, and every month it had a little extra, and the little extra accumulated, and now it's using the accumulation to pay its premiums for a month. That's simply getting caught up on your accounting and fooling some taxpayers along the way into thinking that your failure to stay caught up all along has miraculously produced a windfall.
Wednesday, April 3, 2013
Causation and Insurance Broker Negligence
The Ontario Court of Appeal recently commented on one of the leading cases pertaining to insurance broker negligence, Fletcher v. Manitoba Public Insurance Company, [1990] 3 S.C.R. 191.
In Zefferino v. Meloche Monnex Insurance Company, 2013 ONCA 127 (C.A.), the plaintiff sued his insurance company alleging that the insurer should have offered him optional income replacement benefits, and claiming a loss of IRBs which should have been available to him. The plaintiff argued that the ratio in Fletcher did not require a plaintiff to prove that the acts or omissions of the insurer caused the loss, but rather only that the insurer had a duty to inform the insured, that it breached its duty of care and that there was a gap in coverage.
The Court of Appeal held that a plaintiff is not relieved of the normal burden of proof in an insurance broker context and must show causation. There was no evidence to prove that Zefferino would have purchased optional insurance coverage other than a bald and self-serving assertion, and therefore his action failed.
In Zefferino v. Meloche Monnex Insurance Company, 2013 ONCA 127 (C.A.), the plaintiff sued his insurance company alleging that the insurer should have offered him optional income replacement benefits, and claiming a loss of IRBs which should have been available to him. The plaintiff argued that the ratio in Fletcher did not require a plaintiff to prove that the acts or omissions of the insurer caused the loss, but rather only that the insurer had a duty to inform the insured, that it breached its duty of care and that there was a gap in coverage.
The Court of Appeal held that a plaintiff is not relieved of the normal burden of proof in an insurance broker context and must show causation. There was no evidence to prove that Zefferino would have purchased optional insurance coverage other than a bald and self-serving assertion, and therefore his action failed.
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