Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
I write with a simple question, and I hope that you can provide a simple answer. For years now, we have used a standard permission slip for field trips. It is standard fare, and our version reads:
, ______________________, give the [_____] Public Schools, permission for my child ____________________ to participate in the field trip to ___________________ on ____________________, 2023. I understand that this is a supplementary activity and that by granting this permission I agree to indemnify and hold the [______] Public Schools harmless from any claims of injury caused by the commission or omission of any act by [______] Public Schools staff other than gross negligence or wilful misconduct.
We have used this permission slip form for years, and parents have simply signed it, as they should.
Yesterday, a parent, who repeatedly let me know that she’s a lawyer, told me that she is not going to sign the form. Her concern is over the indemnification provision (quoted above). She claims that it is unfair of us to ask parents to waive potential claims. It’s a free country, and that is fine. However, she also told me that she expects nonetheless that her son will be able to go on the field trip.
My position is that parents should sign the form if they want their child to go on the trip. We don’t have to offer the planned fried trip (here, a fun trip to the Boston Science Museum), which is simply an enrichment activity. Given that fact, it seems perfectly fair that parents waive potential claims. We shouldn’t be worse off for offering this supplementary activity, and if parents don’t want to sign the form, their child can simply stay behind and be supervised in school that day.
Can I tell this parent that her child will not go on the field trip unless she signs the form?
Just Say Yes
Legal Mailbag is happy to oblige with a simple answer. No. You cannot.
If you persist in your position that this parent must waive potential claims to permit her child to go on this field trip, she will be able to claim that you have inappropriately denied their child access to a school activity, and she can make that claim either by filing a Section 10-4b complaint with the State Board of Education or by going directly to court to seek injunctive relief.
The problem is that your request that parents waive potential claims as a condition for participating in the field trip is against public policy. Our Supreme Court ruled in 2005 that public policy prohibits enforcement of a release from liability for future negligence, even if the release is stated in clear language. Hanks v. Powder Ridge Restaurant Corporation, 276 Conn. 314 (2005). See also Munn v. Hotchkiss School, 933 F. Supp. 2d 343 (D. Conn. 2013) (release signed by student seriously injured on a trip to China void as against public policy).
You will be happy to know that the question of permission slips stands on a different footing. Permission slips do not purport to serve as a waiver of future liability claims, but rather provide notification to parents of school activities that are out of the ordinary. Therefore, permission slips serve an important function — they provide the parents notice of the special situation and give the parents the opportunity to bring any special concerns to the attention of school personnel. While governmental immunity against liability for injuries may be available, that is not a sure thing given the case law. Thus, school officials must take seriously their duty to warn against possible dangers, and providing such warnings on the permission slip is an appropriate place to do so.
Please do remember, however, that the use of permission slips has its downside as well. If a parent puts school personnel on notice of special circumstances, through a permission slip or through emergency health information, a failure to take related precautions may result in a finding of liability. When a school district is aware of special circumstances in such a case, its failure to follow through likely would be seen as unreasonable and thus could lead to a finding of liability for negligence if there is a related injury.
Here, Legal Mailbag suggests the following. Tell the parent that you will be revising the form, but for now, she should strike through the sentence referring to indemnification, initial the strikethrough, and sign the form. With that, her child should be good to go.