Many school districts require students to sign negligence release forms
as a condition of participating in varsity sports or other
extracurricular activities Unfortunately, Illinois courts have not
directly addressed the validity of negligence release forms.
Below, we review the available legal authority, and offer suggestions
so to ensuring the best chance that your forms will be upheld if
challenged.
I. The Current Position of the Courts
A. Wagenblast v. Odessa School District
(Washington Supreme Court, 1988)
1. Public policy of Washington against
waivers.
2. Multi-factor “balancing” test.
B. Sharon v. City of Newton (Massachusetts Supreme Court, 2002)
1. Massachusetts public policy does not
ban waiver for cheerleading.
2. Waivers appropriate where activity is not “compelled or essential”
3. California case, Hohe v. San Diego Unified School District follows
Sharon
C. Related Issue: Can parents waive the rights of children?
II. Advice for School Officials using Negligence Release Forms
A. Be aware of the importance of
Indemnity” language.
B. Students should not be required to waive a negligence claim as a
condition of attending school or participating in any mandated school
function.
C. Negligence release agreement should be as brief as possible and
drafted in language that is easily understandable by parents.
D. School districts should also make sure that their negligence release
forms clearly put parents on notice that their signature waives all
claims they may have against the school district for their child's
activity related injuries, including claims based on negligence.
E. Consider allowing students the opportunity to purchase accident
insurance to cover any injuries a student may suffer while
participating in school activities.
F. Negligence release agreements are not a substitute for liability
insurance.