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Whether your child is off to daycare or kindergarten for the first time, or is a seasoned fourth- or fifth-grader, chances are they'll be spending some time on the playground. And while playground equipment has made some great strides in safety from the old metal bars and merry-go-rounds of our youth, any kind of play carries some injury risk.
Just as every school has a playground, just about every school requires parents and students to sign liability waivers at the beginning of the academic year. Often, these waivers purport to protect schools from any legal liability if a child is injured while at school. But are they enforceable? And do they mean you can never sue if your child is injured on the playground?
Most courts have found that liability waivers are enforceable, but only if they meet certain criteria and only to a limited extent. First, student injury waivers must be clear, unambiguous, and explicit in their terms. So, waivers printed in faint or small font, or in an inconspicuous place like hidden in a large document, are less likely to be enforceable.
Second, injury waivers only limit school liability for injuries arising out of ordinary negligence, and do not generally prevent parents from suing for injuries resulting from gross negligence, recklessness, intentional torts, or the illegal acts of school staff or other students. What does all that legal jargon mean?
"Negligence" is generally defined as the failure to use reasonable care to prevent harm to oneself or to others. So, for example, if a teacher inspects playground equipment and doesn't notice that a bolt is loose on a swing set, that would normally qualify as ordinary negligence. Gross negligence or recklessness, on the other hand, refers to the lack of any care, or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. Therefore, if school staff didn't bother to inspect the playground equipment at all, or worse, saw the loose bolt and did nothing, a jury might find the school liable despite the waiver. The same is true if school staff or students intentionally hurt your child.
Most courts recognize a general duty of schools, administrators, and teachers to adequately supervise students placed within their care, and some have specified that schools must provide student with adequate instruction, proper equipment, and non-negligent supervision. So if your child is injured on a school playground, and staff failed to properly supervise the space or your child, you may be able to file an injury lawsuit against the school.
Additionally, manufacturers may be liable if faulty playground equipment causes an injury. Manufacturers have a general duty to ensure their products are safe, and they may be strictly liable for injuries caused by their product.
To find out if a school injury waiver is enforceable (or if you even need to sign one), or whether a school may be liable for your child's playground injury, talk to an experienced personal injury attorney about your case.