If parents must sign covid waivers for their children, it will not prevent any lawsuits if students get covid and a parent and their attorney wants to make the school responsible.
First they will argue that the school was negligent(in not taking adequate precautions to protect the children that subsequently become infected) and that the district cannot enforce a waiver freeing them from their own negligence, particularly not for such a critical service as public education.
And they will also argue that in the event the court finds that the school was within their rights with the waiver and thus are not liable for their negligence, the attorneys will argue that this goes well beyond standard negligence and that the school was grossly negligent in not protecting children, and that cannot be waived.
So, issue is anyone who would be suing, will sue whether or not there is a waiver, if their child becomes infected.
The waivers will not prevent any of these lawsuits, but may affect the outcomes.
But even that is debatable. Could it be argued that this is some sort of adhesion contract in the sense that one is compelled to sign or a critical service is denied?
Perhaps, but I'm not suggesting that it rises to the level of those waivers(usually found to be worthless and unenforceable) wherein a 92-year-old patient, in order to obtain life-saving surgery, needs to sign a contract with several pages of tiny print they probably can't even read, where buried in there is a waiver of any negligence concerning the operation.
Can any attorneys with experience with waivers weigh in and opine on the likely enforceability, in the event parents must sign them for all students, yet children become ill with covid after being sent to school?
Of course it's an adhesion contact. I don't know how you could argue otherwise. Doesn't mean it's unenforceable. I think the more important question is what happens if a parent refuses to sign a waiver. Can CCSD require them as a condition of participating in activities? probably. Can CCSD require them as a condition of receiving an education? I don't see how.
Free Appropriate Public Education. No, parents and students can not be required to waive rights as a condition of attending school. Attending extracurriculars, maybe. Class? No.
As to your last point, do you think that if the school requires this waiver, and a parent refuses, is it likely that the district could refuse to enroll the child?
11:14 here. I don't know. I don't have any background in education law and I don't know anything about due process rights to public education under the state or federal constitutions. Since it's an anonymous blog post and I can spout off without doing any research: If a parent refused to sign the waiver, CCSD refused to enroll, and the parent sued, I would bet on the parent. This is barely more than a guess though. If anyone who knows the relevant law wants to chime in I would be interested.
Causation. It will be very difficult and expensive to prove. There will be very few lawsuits over Covid infections, except in nursing homes and hospitals. Let’s be real. What would an expert cost to prove causation.
Guest
Anonymous
July 20, 2020 5:19 pm
10:08. I think the waivers can prevent a lot of litigation, and for the cases where litigation commences summary judgments can be appropriate.
I suppose if there was a situation, as you discuss, of gross negligence which can be proven, that a waiver could be ineffective to cover that.
But essential service or not, I'm not sure it can be analyzed, as you have, to an adhesion contract with the really elderly person receiving critical surgery. I think in the school situation, there is far less immediacy and emergency than that medical situation, and far less at stake on an immediate basis, other viable options are available for parents not wanting to sign, and the waivers can be made very clear as to what they embrace(something which is seldom the case in these long, small print waivers involving surgery).
But who knows about all this. Not me. we will need to wait. I'm not even sure the waivers will be required.
Guest
Anonymous
July 20, 2020 6:04 pm
Are RJ or Nevada Independent or anyone else producing updates on the marijuana trial? I could not find any live tweets or anything, but it seems like the kind of case where they would have someone in the courtroom reporting out.
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If parents must sign covid waivers for their children, it will not prevent any lawsuits if students get covid and a parent and their attorney wants to make the school responsible.
First they will argue that the school was negligent(in not taking adequate precautions to protect the children that subsequently become infected) and that the district cannot enforce a waiver freeing them from their own negligence, particularly not for such a critical service as public education.
And they will also argue that in the event the court finds that the school was within their rights with the waiver and thus are not liable for their negligence, the attorneys will argue that this goes well beyond standard negligence and that the school was grossly negligent in not protecting children, and that cannot be waived.
So, issue is anyone who would be suing, will sue whether or not there is a waiver, if their child becomes infected.
The waivers will not prevent any of these lawsuits, but may affect the outcomes.
But even that is debatable. Could it be argued that this is some sort of adhesion contract in the sense that one is compelled to sign or a critical service is denied?
Perhaps, but I'm not suggesting that it rises to the level of those waivers(usually found to be worthless and unenforceable) wherein a 92-year-old patient, in order to obtain life-saving surgery, needs to sign a contract with several pages of tiny print they probably can't even read, where buried in there is a waiver of any negligence concerning the operation.
Can any attorneys with experience with waivers weigh in and opine on the likely enforceability, in the event parents must sign them for all students, yet children become ill with covid after being sent to school?
Of course it's an adhesion contact. I don't know how you could argue otherwise. Doesn't mean it's unenforceable. I think the more important question is what happens if a parent refuses to sign a waiver. Can CCSD require them as a condition of participating in activities? probably. Can CCSD require them as a condition of receiving an education? I don't see how.
Free Appropriate Public Education. No, parents and students can not be required to waive rights as a condition of attending school. Attending extracurriculars, maybe. Class? No.
11:14–10:08.
Agree with you on each point.
As to your last point, do you think that if the school requires this waiver, and a parent refuses, is it likely that the district could refuse to enroll the child?
If so, it's a powder keg for the district, IMO.
11:14 here. I don't know. I don't have any background in education law and I don't know anything about due process rights to public education under the state or federal constitutions. Since it's an anonymous blog post and I can spout off without doing any research: If a parent refused to sign the waiver, CCSD refused to enroll, and the parent sued, I would bet on the parent. This is barely more than a guess though. If anyone who knows the relevant law wants to chime in I would be interested.
Causation. It will be very difficult and expensive to prove. There will be very few lawsuits over Covid infections, except in nursing homes and hospitals. Let’s be real. What would an expert cost to prove causation.
10:08. I think the waivers can prevent a lot of litigation, and for the cases where litigation commences summary judgments can be appropriate.
I suppose if there was a situation, as you discuss, of gross negligence which can be proven, that a waiver could be ineffective to cover that.
But essential service or not, I'm not sure it can be analyzed, as you have, to an adhesion contract with the really elderly person receiving critical surgery. I think in the school situation, there is far less immediacy and emergency than that medical situation, and far less at stake on an immediate basis, other viable options are available for parents not wanting to sign, and the waivers can be made very clear as to what they embrace(something which is seldom the case in these long, small print waivers involving surgery).
But who knows about all this. Not me. we will need to wait. I'm not even sure the waivers will be required.
Are RJ or Nevada Independent or anyone else producing updates on the marijuana trial? I could not find any live tweets or anything, but it seems like the kind of case where they would have someone in the courtroom reporting out.
Good point! I wish I had the time to go watch.
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