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You have signed a waiver or release and your child is hurt or killed in a school-sponsored activity. As a parent, is there anything you can do?

Posted by: David Abney
October 21, 2010
Topic: Schools -- Releases and Waivers

Kindergartens, elementary schools, middle schools, and high schools routinely force parents to sign waivers or releases before letting their children participate in sports activities or field trips. Often, the schools also force schoolchildren to sign the waivers or releases. School administrators know that school-age children are immature and careless. And if they can find a way to get injured, they will. So schools now routinely try to insulate themselves from liability for their own negligence by requiring signed waivers or releases before students can so such things as participate in sports or go on school-sponsored trips.

Waivers and releases are so universal that when a school's employees or teachers have negligently injured a student, that student's parents often assume that there is nothing they can do. After all, the parents (and maybe even their student) have signed a waiver or release. And the parents often assume that means there is no right to make a claim or to sue the school or its employees or teachers.

But parents who assume that are wrong --- for five main reasons. First, starting with the student, the fact that an underage student has signed a waiver or release has no legal significance. After all, with rare exceptions that don't apply here, underage students lack any capacity to enter into a binding contract. And a waiver or release is just that --- a contract that the school is trying to use to bind the student. Just as a minor student cannot make a valid, binding contract to buy a house, a minor student cannot make a valid, binding contract to release or waive the student's rights if a school's employees or teachers negligently injure the student in a school-sponsored activity. So the student can make a claim or sue, regardless of any release or waiver that the student may have signed.

Second, the parents cannot waive the student's right to seek a recovery for injuries that the school's employees or teachers have negligently caused. The student's right of recovery, after all, is a form of "property" that belongs only to the student. The parents may waive or release their own right to seek a recovery for injuries to their child --- but they cannot waive the child's independent right to make a recovery.

Third, if the student dies, and the parents signed a waiver or release, that still does not slam the door on a recovery. The parents themselves may not be able to sue directly, but the "estate" of the deceased child can sue to recover such things as the earnings that the child would have made over the child's projected life. That could be a huge sum. The fact that the parents may have signed a release or waiver would not bar the deceased child's estate for making its own claim. (Of course, the parents would probably be the beneficiaries of the dead student's estate, so the money would eventually go to them, despite the fact that they signed a release or waiver. That may seem illogical, but it is legal. And that is one more reason to consult a lawyer before simply giving up on seeking a recovery from the school, or from its employees or teachers.)

Fourth, in some states, like Arizona, the validity and enforceability of a release or waiver is always a question of fact for the jury. That means that a trial judge can never simply take a waiver or release at face value, and say that it ends the case. In states following that rule, only a jury can decide if a release or waiver is valid and enforceable. That at least gives the parents a chance to vindicate their rights before a jury of their peers.

Fifth, it is a rare release or waiver that is legally perfect, or that the school explains fully and fairly to the signing parents. That means there are possible legal challenges to the release or waiver that could nullify it. Those challenges include lack of informed consent, misrepresentation, overreaching, and unconscionability. It is not true that a great lawyer can always find a loophole or escape hatch in any contract. But a good lawyer can do far better in challenging a release or waiver than a non-lawyer can do. And that is a compelling reason to consult with an experienced, knowledgeable lawyer to see if there are possible legal challenges to a release or waiver affecting an injured or killed student. You could not do better than consulting with one of the finest personal-injury and wrongful-death law firms in the nation - Knapp & Roberts.


The Knapp & Roberts law firm represents serious injury and wrongful death clients throughout Arizona, including the communities of Phoenix, Scottsdale, Tempe, Chandler, Gilbert, Mesa, Glendale, Peoria, Surprise, Queen Creek, Apache Junction, Goodyear, Tucson, Flagstaff, and Yuma in the Valley of the Sun - Maricopa County, Pinal County, Coconino County, Yuma County, and Gila County.