As schools begin to reopen in Arizona, districts are asking parents to sign liability waivers. For example, the Marana Unified School District has a waiver called “COVID-19 Waiver Release and /Assumption of Risk Form”.
This form states COVID-19 is a worldwide pandemic, is “extremely dangerous”, and is passed mainly from person-to-person contact. Thus, government and health authorities recommend social distancing and discourage large gatherings.
However, since school is opening and even though the district plans to take precautions, parents are asked to agree that:
- They assume all risk and hazards associated with COVID-19 and school attendance.
- The child's attendance at school is “wholly voluntary”.
- They waive any potential liability for the school, agree not to sue the district if their child or any member of the household gets COVID-19, and in fact agree to indemnify the district if any suit is brought on behalf of their themselves, their children or any member of the household.
Is this form legal and binding? Yes, to some extent, but it is nothing close to “full proof”. In other words, despite the wording, an injured party could still sue, and it would be up to a jury to decide if the form bars recovery.
This is because the Arizona constitution guarantees a jury must always consider the defense of assumption of the risk. In Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 111 P.3d 1003 (2005), the Arizona Supreme Court ruled that a similar form did not bar suit but instead was an issue for the jury to decide.
Furthermore, the form does not explicitly waive liability for negligence by the district. Therefore, there is nothing barring a negligence case from proceeding. Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 800 P.2d 1291 (1990).
Indeed, this form raises important questions, including how “members of the household” could be bound, whether a child's attendance at school is really “voluntary”, and whether this form is in fact coercive.
In the end, it is thus doubtful this form will bar legitimate claims of negligence against school districts arising out of COVID-19.
This past Friday, I gave an interview on KOLD TV on this topic. You can watch it in full here.