SEE YOU IN COURT - May 2013

The Nutmeg Board of Education has long recognized the educational benefits of international travel, and it encourages teachers to plan trips to far-flung destinations. Some trips, such as the annual summer trip to Seville, have been to enhance language acquisition, while others, such as the annual trip to Cancun, have been focused on physical education. This spring, the Board of Education has received a number of requests, and the Board members have to make some hard decisions. The list included the usual trips to Europe and Cancun. But one enterprising teacher has proposed an out-of-the-box trip to North Korea “to get to the truth” of the current crisis.

“We need to discuss this in executive session,” intoned Bob Bombast, veteran Board member. “We can’t approve all of these trips, and we need to have a candid discussion of the legal issues related to these trips.” The Board members were a little uneasy, because they had never discussed such trips in executive session, but they were also interested to hear what Bob meant by “legal issues.” So they voted unanimously to go into executive session for the purpose of discussing “legal issues.”

Once in executive session, Bob lowered his voice and shared his concern. “I just read in the paper that the Hotchiss School got hammered with a $40,000,000+ jury verdict. The School organized a trip to China, and tragically one of the students contracted viral encephalitis and was permanently disabled. We can’t risk that here.”

The Board members were shocked at Bob’s story, and a heated discussion ensued over whether and how the Nutmeg Public Schools can continue to sponsor international travel without the risk of such tragic events and the related liability. As usual, Bob Bombast had the answer. “As a condition of approving any future field trips, we must require students to sign a complete release of liability. Bad things happen all the time. We should not be responsible if they happen during one of our field trips.”

The Board members agreed enthusiastically with Bob’s idea. “In fact,” said Board member Penny Pincher, “if the parents and students are going to be waiving liability claims, we can even approve the trip to North Korea. That does sound interesting. Our students should enjoy what a weird place it is.”

Bob had figured that the other Board members would share his concern over liability, and so he was even ready with a draft release for the Board members to consider. Bob explained that he had combed the Internet for a succinct broad waiver, and he asked for a motion to adopt it. Without leaving executive session, the Board passed the following motion: “As a condition for participating in any trip sponsored by the Nutmeg Public Schools, all participants shall execute the following release of claims:

I, the undersigned, release the Nutmeg Board of Education, its members, employees and agents, from any and all claims that may arise from any cause whatsoever, whether resulting from acts or omissions of any persons, or any other risks of any way, shape or form.

Is the Nutmeg now safe from liability claims arising from school-sponsored trips? 

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Not at all. Trips, whether during the school year or during breaks, provide important enrichment activities for students. However, they carry with them certain risks against which school districts can insure, but which they cannot avoid.

It could be tempting to ask participants in any extracurricular activities to waive liability claims. These activities, such as but not limited to international trips, field trips, or interscholastic athletics, are not required by law, but rather are intended to enrich the school experience. Why shouldn’t school districts be able to offer these activities on the condition that participants waive any liability claims that may arise? The answer is simple: because in the school setting, it is likely against public policy to permit people to waive future claims. In Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314 (2005), the Connecticut Supreme Court has ruled that even express and explicit waivers of negligence can be unenforceable, based on consideration of six non-exclusive factors, including involving an activity subject to public regulation (as certainly are our schools), involving a decisive bargaining advantage for the entity seeking exculpation, and presenting a standard adhesion contract that does not provide for individual negotiation. The factors identified by the court in the Hanks case are present in the school setting. Indeed, in the recent case involving the Hotchiss School Bob cited, the federal court ruled that a release similar to that Bob proposed was void as against public policy, opening the door to the massive verdict against the school.

When considering liability claims, understanding of three separate concepts is essential. In some activities, there is immunity from liability, i.e. an injured party may not recover damages. Such situations are rare and are provided by statute, such as immunity for requiring immunizations (Section 10-204c) or immunity from claims in certain bullying situations (Section 10-222l). There is no provision for immunity from claims arising out of school activities such as field trips.

The second concept is indemnity. The fact that some risk of liability for school activities is unavoidable can be frightening, and it is important to know that any such liability is not personal. Under Section 10-235, school board members and school employees are protected and indemnified from personal liability for actions they take on behalf of the school district as long their actions are not wanton, willful or malicious. This statutory protection reflects another important public policy – that liability concerns should not drive decisions made on behalf of the public. If it weren’t for this protection, school life could be barren indeed, as school officials would perforce terminate all activities that could present liability concerns. With this protection, school officials can make such decisions by balancing the benefits of the activity with the risks.

The third concept is insurance. Since liability, albeit not personal, is unavoidable, it is important for school districts to have insurance to provide appropriate protection against such claims. Such protection should include coverage for attorney’s fees, which is also covered by Section 10-235, and ideally should provide some say over the selection of the attorney who will handle the claim for the district.

Finally, as usual, the Nutmeg Board of Education needs to be more careful about Freedom of Information issues. There is no general executive session privilege for “legal matters.” A discussion of legal matters is only permissible if it relates to written advice provided by a lawyer for the school district. Accordingly, the confidential discussion that followed Bob’s suggestion that the Board convene into executive session violated the FOIA. Moreover, the Board’s vote in executive session violated the FOIA because the executive session privilege is limited to discussion.