By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short,
law-related questions of practical concern to school administrators. Each week, we will select a question and publish an
answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues.
We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg. __________________________________________________________________________________________________________________

Dear Legal Mailbag:

It seems like every time I turn around, I read about a teacher or principal getting sued. A couple of years ago, I took a great course on school law, and I am well aware that Connecticut General Statutes, Section 10-235, protects and indemnifies me against claims made against me, no matter what. However, I am sure that you agree that it would be better if we can just avoid such claims altogether.

Well-prepared by my school law course, I wrote up a little release agreement for parents to sign for field trips, sports, and any other out-of-the-ordinary activity. It clearly and simply provides that parents may not sue and that they release the district (and teachers and me) from any and all claims if their children get hurt during an extracurricular activity. Since we don’t have to provide such activities at all, it only seems fair that students should participate in these activities at their own risk.

Well, I was quite surprised by the pushback. Several parents sent me emails saying that they will not be signing, and one was particularly acerbic in asking whether I had even read what I was asking them to sign. Now I have a tough choice to make. Should I exclude from all the extracurricular activities the students whose parents wouldn’t sign the release agreement?

Signed,
Legally Speaking

Dear Legal:

As Alexander Pope sagely observed, a little learning is a dangerous thing. Your release idea will not work, whatever school law course you took, and you should certainly not exclude such students from these activities.

The courts in Connecticut (and elsewhere) have ruled that a contract that purports to release claims in advance is void as against public policy. The logic is that people should always be responsible for their actions, and a release provided in advance would result in their not being accountable. That concern is especially strong where there is unequal bargaining power between the parties, as is the case here (i.e. “sign here or deprive your child of enrichment activities”). In short, your “release agreement” is surely unenforceable, and it will surely antagonize any parent who thinks about it before signing (or refusing to sign) it.

You are not helpless here. When an activity poses a particular risk, you are free, indeed well-advised, to notify parents in writing of any special risks. Then, in the unlikely and unfortunate event that a student is injured, you and the school district may be able to establish that your actions were reasonable and that you and the school district are not liable for the injury that occurred.

Finally, I must set you straight in one other respect. You said that Section 10-235 protects you against claims “no matter what.” Practically speaking, that may be almost true. However, for the indemnity statute to apply and protect you, you must be acting within the scope of your employment. Moreover, your actions must not be “wanton, reckless or malicious.” I am sure that you didn’t mean to suggest otherwise, but whether lawyer or wannabe, we should be precise with our language, don’t you think?