Friedman, Hirschen & Miller, LLP

Every parent with a school-aged child has at some point been asked to sign a liability waiver. Whether it is for a field trip or participation in a sports program or other extracurricular activity, schools ask parents to sign away their right to sue the school should something go wrong. This unfortunately puts parents in a difficult position, having to decide whether to deny their child the opportunity of a field trip or sports team versus signing away their legal recourse in the event of an accident.

Many would agree that our society has become very litigious, with some people looking for an opportunity to sue someone else for a financial windfall. Schools are highly sensitive to liability and want a waiver from parents to reduce the risk of a lawsuit. Unfortunately, liability waivers give the impression to parents that they cannot seek redress from the school under any circumstances should their child be injured. However, that is not the case.

Many courts do not like the idea of parents being asked to sign away liability for harm to their child. The broad nature of many liability waivers seems to be at the core of some courts' angst as many will not uphold the waiver for anything but risks inherent to the activity. That means that in many cases, courts will allow lawsuits for the negligence of the school and/or its officials and employees.

Cause of Action Negligence Caused by a School Official

To bring a negligence suit, the plaintiff (a child and/or his or her parents) must show that the defendant (the school) had a duty toward the child, breached the duty, which resulted in an actual injury. The plaintiff need only prove negligence in a civil lawsuit by a preponderance of the evidence, meaning it is more likely than not that the defendant was negligent. Once that is established, compensation for the financial and emotional loss can be assessed to the defendant.

While not all courts will allow a negligence lawsuit when there was a school liability waiver, a waiver cannot protect a school against gross negligence. Gross negligence is a failure to exercise any level of care toward the plaintiff and usually involves intentional or reckless behavior the person knew or should have known would cause injury. That means a school that tries to protect a child may be able to avoid liability with a waiver, while the school that does absolutely nothing has no where to hide.

Though it is easy to simply sign on the dotted line of a school liability waiver when a child wants to go on a field trip or play on a school sports team, parents should be cautious before signing away their child's course of redress in the event of an accident. While courts differ on whether they will uphold such waivers, parents should not be afraid to consult an attorney if their child has been injured while participating in a school-related program.