An Administrator's Guide to California Private School Law

Chapter 16 – Off Campus Activities

known right. 2163 If a party does not know the terms of a waiver, it may be void. 2164 However, courts have held that reasonable diligence requires a party to read a contract before signing it. 2165 Therefore, schools should provide parents with an adequate opportunity to read and consider a waiver before signing it. B. W HAT T YPE O F L ANGUAGE I S R EQUIRED ? The waiver must be “clear, explicit and comprehensible.” 2166 It must, when read as a whole, make clear the effect of signing the agreement. 2167 It should be simple enough for a layperson to understand and give notice of its import. 2168 Waivers that do not meet this standard may be found invalid. Doe v. Archbishop Stepinac High School A pupil sued a private high school after being sexually assaulted by three other pupils during a trip to Europe. As a defense, the school relied on a waiver. The Court found the release unenforceable because it failed to “…clearly and unequivocally express the intention of the parties to relieve the [school] from liability for injuries sustained as the result of the [the school’s] negligence.” 2169 Eriksson v. Nunnink A teenager and her parents entered into a waiver before a horseback riding competition. The waiver listed the inherent risks of the activity and released the coach from all liability except for direct, willful, or wanton negligence. The teenager was injured while competing and died from her injuries. Her parents sued, but their claims were rejected because the risks were clearly laid out in the release. It specifically listed death and bodily injury as a risk of the activity and competition. 2170

Preparing appropriate waiver language is challenging. On the one hand, schools will want language that is broad enough to cover all reasonably foreseeable contingencies. On the other hand, courts increasingly require waivers to mention the specific risks being waived. Schools therefore need to ensure that a general release sufficiently reflects the potential hazards of an off-campus activity. It is recommended that releases be individually tailored and describe the activity and its known risks for each field trip.

LCW Practice Advisor

C. W HICH P ROVISIONS S HOULD B E I NCLUDED ?

1. V OLUNTARY P ARTICIPATION The parties must enter into a waiver voluntarily for it to be enforceable. 2171 Language establishing the voluntary nature of the waiver should be clearly stated. If students are required to participate in an off-campus activity, the waiver may not be enforceable. Therefore, schools

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