The Value of a Liability Release in
School-Sponsored Activities

Consider this situation. You plan to drive your students in a District-owned car to the habitat of an endangered bird--the double-beaked, fuchsia-crested twitt. Each of your students has signed a release stating that the student excuses the District and everybody connected to it from any claims if the student or his or her property is hurt during the trip, even if the damage is the District's fault.

Enforceable in Court

As you steer the car along the high-desert mountain road to reach the habitat, the car veers into the side of the mountain, injuring some of the students' belongings. You think to yourself: "I'm glad I had everyone sign a release!" But does the release prevent the District, your college, and you from being sued by--and found liable to--a student who claims that you are a poor driver and that the District's car was not properly maintained? Chances are good that a court will not enforce the release because they generally don't like them.

The release described in this hypothetical field trip is not unusual in the educational setting. In that type of release, an institution attempts to relieve itself, and its employees, from the consequences of their own negligence. An effective release prevents someone with a claim for damage or injuries from successfully pursuing in court the institution or the person who sought and obtained the
release.

Educational institutions use releases in a wide range of activities, such as field trips, medical treatment, and extracurricular events. The judicial aversion to them doesn't mean that their use should be discontinued. It simply means that those persons and institutions using them should understand their limitations, and follow some specific steps in drafting them.

For example, colleges and universities regularly enroll students who are under 18 years old. Courts and statutes generally view minors as lacking the mental maturity to understand what they are signing when they sign a release or a contract. It does not cure the problem to obtain the signature of the parents instead. Parents can't sign a release for their minor child unless some statute authorizes them to do so.

Field Trip Liability

Courts may also be hostile to enforcing a release if the student was required to participate in the activity covered by the release. The best illustration of that hostility is a 1983 state court decision in Louisiana.

The circumstances involved a nursing student at a technical institute who died in a traffic accident during an out-of-state nursing school field trip. The institute had required her to take the trip as part of a course which she needed to graduate. Students received twelve credit hours for the trip. The deceased student had signed a release as required before going on the trip.

The court refused to enforce the release against the student's husband in a lawsuit he filed against the institute. It concluded that enforcement was inappropriate for several reasons. The institute required students to participate in the trip, gave credit hours for it, did not offer any alternatives for students who did not want to go, was aware that the vehicle in which students traveled was overcrowded, and failed to provide a competent driver. Since the student had not had the same power to bargain with the institution in agreeing to the release, the court concluded, the release violated public policy.

Precise and Unambiguous

Even if the activity covered by the release is not mandatory, a court is unlikely to enforce the release unless its language is precise and unambiguously describes the liabilities sought to be avoided. In the words of Arizona courts, a release must, in clear and unequivocal terms, alert the person signing that document that the other party intends to be absolved from its own negligence.

The lesson from that directive is that a release, even for an extracurricular activity, probably won't be effective unless it is carefully drafted to fit the particular circumstance in which it is used, and specifically advises the party granting the release that he or she is waiving the right to hold the other party responsible for that party's own negligence.

Drafting releases can be a bit like walking through a mine field. The best practice, for District colleges and employees who use releases or who don't currently but think that perhaps they should, is to consult the District's attorneys.

Published in the Winter 1998 Edition of In Brief