N/A: Lawyers - Liability/Hold Harmless

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JGoodish

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JGoodish
First, I understand that statutes and case law vary from state to state, so I am not expecting specific legal advice. I am just trying to understand what is "reasonable" or "typical" in this situation, and whether my concerns are worthy of pursuit.

My wife and I are considering placing our children in a private, independent grade school. As part of the acceptance process, a contract is required. As expected, the contract is slightly one-sided, complete with a statement that any ambiguity in the contract "shall not be interpreted or construed against the party that prepared it." However, I have a specific concern about the indemnification/hold harmless language (see attached image...redacted words represent the school).

At first glance to my non-lawyer eyes, it appears that I am releasing the school and any associates of the school from all liability, including liability for gross/wanton negligence. At the same time, I am agreeing to indemnify and defend the school against any and all claims resulting from the actions of my child. The latter I can maybe understand (though it seems slightly broad), but the former gives me pause.

If I'm entrusting the school with the care and safety of my children during the school day, is it reasonable to discharge ALL liability? Or are my non-lawyer eyes misinterpreting this language?

Also, it appears that I am exposed to indemnify the school against third-party claims for the school's negligence involving my child, even if I decline to make a claim against the school. Again, not sure whether I'm understanding this correctly, or whether such an exclusion is "reasonable" or "typical."

I never gave much thought to this because I suspect that the liability exposure of the public schools is limited by statute, and I've never had to deal with this language from a private school or day care.


Thanks,
JKG
 

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IANAL but AFAIK no contract can completely remove liability for anything and definitely can't stop you from suing if something actually happens. You'd have to know the liability laws in your own jurisdiction to know which laws would supersede the stupid boilerplate document that they want you to sign, however.

I seriously doubt they could actually make you "defend" them, for example. There's always superseding law on that one... You're never mandated to "defend" someone else's actions.

Negligence also plays a factor and can make such contracts immediately forfeit in many places.

Best thing to do if you're really concerned about it would be to take the contract to your attorney and have them red-line the thing, sign the result, and hand it back to them. They'll take that to their attorney and the two will figure out a more realistic compromise.

All of that at some cost to you AND them... which may give them pause and make them wonder why they retained such a bad attorney that they wrote a contract that would not only drive off customers but also who would then have to be paid to "fix" it for them when a parent finally really READ the thing and found it so onerous they handed it to their attorney for review.

In other words, congrats on reading it, and if you have the cash or an attorney friend who'll fix it for free, do so. You'll be doing the next parents a favor when the boilerplate is changed to stop annoying customers with illegal or just stupid mandates of their personal liability as a CUSTOMER, generated by some low level assistant at their retained law firm. (Or worse, created by them from some "legal" website. Right now, you don't even know how that document was created, and it may have been a stupid manager within that company who thought some randomly thrown together words from boilerplate templates all "sounded nice".)

It's America. You'll get all the "Justice" you can afford. At least on this one you'll only be out a couple hundred bucks to get it red-lined and a nice list of things to go tell the school to shove up their respective orifices in their corporate offices.
 
Unless there's a waiting list for this private school, in which case your options are sign it or go elsewhere.
 
Scan, OCR, modify document to your acceptability, print, sign, done.
 
Sounds like an "adhesion contract," usually a take-it-or-leave-it proposition. In some states, courts are less willing to enforce such contracts strictly against the party who did NOT draft it (here, you). Your attorney could be more specific. You can certainly alter it any way you like. They can accept or reject your terms. See if it has an arbitration clause. They're usually enforceable.

Not offered as legal advice. Just my friendly two cents. I hope you land on a school you like. :)
 
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Pay a lawyer to review it. That's a pretty broad and substantial clause, and state law may limit the ability for that clause to be enforced. You certainly don't want to be in a position where they can maim your child to the point where the child needs perpetual care and they will hold no liability. In some states, that would not stand.

As for the liability for the child, it requires "reckless" behavior, which is a specific legal ter subject to interpretation in your state and locality.
 
wsuffa said:
Pay a lawyer to review it. That's a pretty broad and substantial clause, and state law may limit the ability for that clause to be enforced. You certainly don't want to be in a position where they can maim your child to the point where the child needs perpetual care and they will hold no liability. In some states, that would not stand.

As for the liability for the child, it requires "reckless" behavior, which is a specific legal ter subject to interpretation in your state and locality.
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The child liability language is not just limited to "reckless" behavior, it's limited to "intentional or reckless." I suppose that it could be argued that much of a young child's behavior is unintentional, but regardless, the contract appears to require me to indemnify and pay to defend the school should an accuser choose to sue.

The third-party exposure is also a concern. If a vendor decides to sue the school over an incident involving my child, the contract appears to require me to indemnify the school. I am not an insurance company.

Not that I have substantial assets, but it seems irresponsible to risk all of my assets for something I have no control over, likely have no actual responsibility for, and to protect an entity I'm actually paying to provide me a service. There are some high net worth folks who send their kids to this school, but I suspect that the bulk of their assets are protected in ways such that they are shielded from such liability claims.

Paying an attorney to review it is probably the "best" answer, but I am skeptical that the school will agree to modify the language. They are a great school, but they have little to no credible competition in the area.


JKG
 
One thing that annoys me about indemnification clauses is that they always seem to be one-sided. I wonder what they would say if you inserted a clause requiring the school to indemnify YOU for actions of them and their employees.
 
Indemnification is something I would not want to sign if I had any assets. It makes you the insurance company for the other party, exposing you to unlimited financial losses. In the worst case, you lose every cent you've got. Which isn't bad for a poor teenager but could ruin an interview older person with savings.

An agreement not to sue is different and more palatable - the worst case is you can't sue.
 
Schools have lawyered up; for years I used to have a school admin. sign off on a very simple home-made note saying they acknowledged the student volunteer or 'shadow' was attending x days of the week, y timespan each day - and that they needed to know that the student was going to be exposed to health hazards (parent/guardian had to sign too).
All of a sudden I got autobrakes max and all reversers when a student wanted to come to work and I asked for a signature......"our lawyers said they can't sign".
A lot in my line of work have experienced the same so many are refusing students/observers/volunteers. I know they've had some exposure and need to cover for that, but goodbye common sense.
 
JGoodish said:
I am skeptical that the school will agree to modify the language. They are a great school, but they have little to no credible competition in the area.


JKG
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You can be almost certain that the school will not modify the contract. That said, it's still worth the conversation with an attorney so that you can fully understand your exposure.
 
JGoodish said:
At first glance to my non-lawyer eyes, it appears that I am releasing the school and any associates of the school from all liability, including liability for gross/wanton negligence.
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I didn't notice anything about gross negligence.
At the same time, I am agreeing to indemnify and defend the school against any and all claims resulting from the actions of my child.
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It looks like the indemnity language is with respect to reckless or intentional acts, not "all claims" resulting from the actions of your child.

If you are concerned about the obligations created by this contract and possible affect on your assets should your child do something that results in a lawsuit, you really should consult an attorney. Even if this was a lawyer forum, nobody here knows enough about your particular situation.
 
I have made modifications to these types of agreements that *I* will indemnify if *THEY* will indemnify.

Whats good for the goose...

In several instances it brought the BS to a screeching halt.
 
JGoodish said:
As expected, the contract is slightly one-sided, complete with a statement that any ambiguity in the contract "shall not be interpreted or construed against the party that prepared it."
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Not a lawyer, but this part is interesting because I thought that one of the basic rules of contract law is that any ambiguity is to be construed against the party who drafted it. In other words, in favor of you, the party who did not draft it. They're basically putting in a rule which circumvents this part of contract law. It's clever, but I wonder if it's legal (you'll have to ask a lawyer). Here it is described on wikipedia (in fairly plain English): https://en.wikipedia.org/wiki/Contra_proferentem
 
Not giving you legal advice but definitely run it by an attorney. Often, a compromise is to modify to allow for mutual indemnity and a mutual hold harmless clause. However, the attached language has a whole laundry list of folks associated with the school either by contract or employment included in the negligence and indemnity language that should be reviewed. (YMMV)
 
Pfft....everyone throws that stuff into their agreements. Much of it is probably irrelevant or unenforceable. (You typically can't disclaim liability for your negligence, no matter how fancy you word the agreement.)

Personally, if it's where you want your kid to go to school I wouldn't lose much sleep over it.
 
Thanks to everyone who responded.

From my research this weekend, it seems that Loren's advice may be the most practical.

While laws vary from state to state, it appears that in most states, it is somewhat difficult for a waiver of liability for negligence to be enforced. Further, it appears even more difficult to enforce such a waiver if the specific risks to which it applies are not identified in the waiver. In this case, specific risks don't appear to be identified (i.e. "any and all" language is non-specific).

The indemnification language may be more concerning, but I suspect that several legal bridges would have to be crossed for that to be enforced as well. Still, I'm curious as to whether my personal liability policy would cover a claim arising from my child's action at school. I've never thought about that before.

Again, I am not a lawyer and have no legal training, so none of my statements in this thread should be relied on as advice. Engaging an attorney licensed to practice in the applicable state(s) is probably the best advice, although I'm not sure that doing so in this case would result in a different conclusion.


JKG
 
JGoodish said:
The indemnification language may be more concerning, but I suspect that several legal bridges would have to be crossed for that to be enforced as well. Still, I'm curious as to whether my personal liability policy would cover a claim arising from my child's action at school. I've never thought about that before.

JKG
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If you have a typical HO-3 homeowner policy with Personal Liability coverage attached, your child is considered an "insured", and the coverage is not limited to incidents on the premises. So I think it is likely the insurer would come to your defense for "bodily injury" or "property damage" arising from the actions of your child. My biggest concern would be the typical "intentional acts" exclusion, assuming it's legally tenable to assert a child of that age acts intentionally to cause injury or damage (IANAL).

Consult your policy/agent.
 
asechrest said:
If you have a typical HO-3 homeowner policy with Personal Liability coverage attached, your child is considered an "insured", and the coverage is not limited to incidents on the premises. So I think it is likely the insurer would come to your defense for "bodily injury" or "property damage" arising from the actions of your child. My biggest concern would be the typical "intentional acts" exclusion, assuming it's legally tenable to assert a child of that age acts intentionally to cause injury or damage (IANAL).

Consult your policy/agent.
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In my case, I was able to confirm with my agent that you are correct.


JKG
 
asechrest said:
If you have a typical HO-3 homeowner policy with Personal Liability coverage attached, your child is considered an "insured", and the coverage is not limited to incidents on the premises. So I think it is likely the insurer would come to your defense for "bodily injury" or "property damage" arising from the actions of your child. My biggest concern would be the typical "intentional acts" exclusion, assuming it's legally tenable to assert a child of that age acts intentionally to cause injury or damage (IANAL).

Consult your policy/agent.
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My policy specifically excludes any liability that I assume arising out of any contract or agreement.
 
Palmpilot said:
My policy specifically excludes any liability that I assume arising out of any contract or agreement.
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That's an interesting point. In the limited case I was imagining - a third party directly sues his/her child (parent) for bodily injury or property damage caused by said child - I don't think the contractual liability exclusion applies. Namely because the child (parent) is the legally liable party.

That being said, if s/he assumes any liability on behalf of the school by signing this contract, I imagine the exclusion would apply if a loss arises within that assumption. In that case, liability for which s/she would not otherwise be responsible has arisen solely by virtue of the hold harmless and indemnification language of the contract, which is not typically in the scope of the personal liability coverage.

IANAL, IANH/HA
 
Palmpilot said:
My policy specifically excludes any liability that I assume arising out of any contract or agreement.
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That's to prevent you from effectively becoming an issuer and passing off the risk to your HO carrier. But this is about agreeing to be responsible for something you're really already responsible for. Again, if the OP is genuinely concerned about this agreement and his exposure, consulting an attorney licensed in his state is the only right answer.
 
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