Before you cheer ... 'Sign here.'
Schools often ask parents to give up the right to sue when kids join a team or go on a trip. What's at stake?
"Mom, dad, would one of you pull-eeze sign my permission slip?"
It's a familiar refrain in many households and not unlike the request Shimon Sharon heard when his daughter, Merav, presented him with a small card on her way out the door to school.
In large type at the top it read: "Newton Public Schools Athletics. Parental Consent, Release from Liability and Indemnity Agreement." A dense paragraph of legal jargon followed.
Without Mr. Sharon's signature, Merav could not join the cheerleading squad at Newton (Mass.) North High School. So, like many parents in a hurry, he scribbled his name without reading it and forgot all about it.
That was 1995. Today, that little card has popped up at the center of a precedent-setting legal battle between Sharon's now-adult daughter - who was injured while cheerleading - and the city of Newton. The key issue is whether the card that father and daughter both signed exempts the school and city from being held liable for alleged negligence.
At a hearing next month, the Massachusetts Supreme Judicial Court will consider this issue for the first time. A lower court granted a motion for summary judgment in favor of the city in September 2000.
But if that ruling is overturned, it could send shock waves through schools statewide and beyond. Activities from football to field trips could be chopped to limit liability, says Richard Chmielinski, a lawyer for the City of Newton. Others say that claim is completely unfounded.
Either way, state officials, school lawyers, and insurance companies are watching closely, eager to find new ways to avert multimillion-dollar judgments.
In some states, city liability has already been capped by the legislatures, as it is in Massachusetts at $100,000.
Even so, lessening the risk of legal liability and cutting often-steep school insurance costs to cover sports and transportation for students on field trips have become powerful motivators. Which partly explains the ever-growing blizzard of permission slips laced with waiver provisions.
Like Sharon, many parents don't realize they are signing their rights away. Others aren't aware that the effectiveness of the liability waivers varies greatly from state to state. In many, waivers are "not worth the paper they're printed on," one expert says. In a few others, they are frequently upheld.
The card Sharon signed had language that eliminated his right to sue for negligence. Not only that, it provided that Sharon would pay back, or "indemnify," the school if his daughter were to sue at a future date.
"I signed it without knowing the consequences, so that my daughter could participate in the cheerleading program," Mr. Sharon testified in a court affidavit. "I did not think about that form from that day forward. I did not recall having signed this release.... After I recently read it more carefully, I still didn't understand it."
Shortly after Merav joined the cheerleading squad in 1995, she fell during practice from atop a human pyramid and broke her arm severely. Three years later, when she became an adult, she sued the city, alleging that the school failed to ensure that her coach was properly trained and was taking proper safety precautions.
But the city played its trump card - producing the liability-waiver form signed years earlier. Ms. Sharon's lawyer is predictably unimpressed.
"We found that in almost every other state in the country they have struck down releases of the right to sue for negligence," says Jeffrey Petrucelly, Ms. Sharon's attorney. "It's hard for parents. Children say they want to engage in an activity and [ask parents parents to] sign this form. In this case, the form was in tiny print and hard to understand."
A critical factor in the Sharon case is the status of public schools - and the extracurriculars they offer. Many courts have ruled that because K-12 schools are public institutions and education is compulsory, the institution has unfair leverage in contracting with parents to release the school from liability for future negligence.
On the other hand, city lawyers say nobody forced Merav Sharon to be a cheerleader. It was a purely optional after-school activity. "They're nonrequired courses, so it's always the option of the student to avail themselves of it, or seek elsewhere, such as a private sports program," Mr. Chmielinski says.
But Michael Gillis, president of the Massachusetts Academy of Trial Attorneys, which has filed a friend-of-the-court brief on behalf of Sharon, says that argument is full of holes.
"Look, there's really an unfair playing field here," he says. "You've got a kid who enjoys cheerleading and sports, who lives and breathes for athletics. How's a parent going to be able to say, 'I can't sign that release, so you can't play'?... The whole reason for sports and activities in schools is to educate. So why require a release? It's bad public policy."
What Sharon and her attorney are up against, however, are conditions beyond the schoolyard: Liability waivers have been widely embraced in American society. From health club memberships to bungee jumping, participation often requires a willingness to release the operators from liability. And courts in 45 states have generally upheld people's right to sign away their right to sue companies for negligence, writes Doyice Cotten, a former professor of sports management and now a leading sports-risk consultant.
But public schools and minor children are seen differently in many states. First, waivers signed by minors are never effective, since minors cannot be legally bound by any contracts. So parents usually sign instead. But can a parent sign away a child's right to sue? That's another critical issue in the Sharon case.
"It's not a federal question, so there's no national answer," says Paul Anderson, associate director of the National Sports Law Institute at Marquette University in Milwaukee. "Each state set its own standards."
Despite this variability, permission slips with and without liability waivers embedded in them seem to be in use more than ever by schools. Some observers, however, suggest they are a less effective part of a school's legal armor today than they were decades ago when courts were first encountering them.
T.C. Mattocks, an assistant dean of education at Idaho State and co-editor of the School Law Reporter, says most of these forms today serve an informational purpose. "Many just say, 'here's how to reach us, here's where we're going,' not so much a legal contract," he says.
Most school authorities understand - even if parents do not - that permission slips in the majority of cases do not exempt their schools from liability for negligence, even if the wording indicates it does, he and others say.
John Wagenblast is one parent who made sure his child's school knew it couldn't shirk liability.
An attorney in Yakima, Wash., and the father of four boys, now grown, he yanked his sons Alex and Charlie out of high school football rather than sign a form waiving the right to sue for school negligence.
But his boys desperately wanted to play. So he sued - and won. In a landmark ruling in 1988, the Washington State Supreme Court ruled that the Odessa School District could not protect itself against negligence suits by requiring students' parents sign waivers.
"I'm a firm believer that parents need to know where their kids are. Schools do have a right to demand a permission slip. But there's a difference. Schools cannot duck their responsibility with a waiver," Mr. Wagenblast says.
The Wagenblast ruling has been cited in court cases nationwide - including the Sharon v. City of Newton case pending in Massachusetts. But warnings that invalidating waivers might cause schools statewide to dump sports and field trips have proven false.
The Odessa High School fighting "Tigers" football team finished second in the state last year. Not having liability waivers has not crimped the education of students, school officials say.
Indeed, schools in Washington are requiring permission slips more than ever - but without the liability waiver. Some schools may give parents a liability waiver form, but by law parents are not required to sign it for their children to participate - at least not in Washington, authorities say.
"We have permission slips for everything, and emergency authorization forms for everywhere we go," says Warren Reeves, superintendent of the Odessa School District. "We also understand ... the district is still very liable, and that the permission slip does nothing to alleviate our responsibility."
But that view clearly isn't universal. "We feel the burden of risk of a child being injured from simple negligence in an extracurricular activity should be born by their parents, who should be able to insure against these types of risks," says Chmielinski, the City of Newton's lawyer.
Staff writer Seth Stern contributed to this report.