Sign of the Times – The Post-Prom Waiver

The New York Times had an article in last weekend’s Style section about the post-prom waiver.  Apparently, in some suburbs, liability conscious parents and schools hosting a post-prom after party are asking teenagers and their parents to sign a waiver.   My initial reaction was, Really?  Has it come to this?  But the more I thought about it, I could understand why some schools and parent- hosts might think it was a good idea. I did a quick search of “post prom waivers” and it seems that they serve several purposes. 

First, they waive liability.  The waiver would probably not be enforceable to stop lawsuits based upon negligence — none of the ones I found even sought release for negligent acts on the part of the host – and certainly would not be effective to bar suits claiming gross negligence or recklessness on the part of the host.  They generally did not overreach by which I mean they did not seek to waive liability for everything under the sun (like this Borat release). 

Second, and related to the waiver, was an assumption of the risk clause.  This requires the student and the student’s parent to knowingly and voluntarily assume the risk of harm relating to the student’s participation in post-prom activities.  It seems as though post-prom activities have become much more active than when I was in high school – I found parties where there are extreme sports challenges and what looked like sumo wrestling!(?)  The waivers also contained a medication release form, which given the laws in this area, is a prudent measure.

Third, and most useful, all the post-prom waivers I found established guidelines or rules of conduct.  These clearly outline the school’s (or host’s) expectations for student behavior as well as parental responsibilities.  They establish, for example, whether the event is a “lock-in” (meaning the students can’t leave the premises) and the rules regarding pick-up times and who may attend the event.  Given this is prom night, they also set out very clearly the expectations regarding drugs and alcohol – i.e. there will be NONE of that.  Students and parents know that drugs and alcohol are not allowed, but putting this in the waiver allows the conversation to happen.  More importantly, I think, it communicates to them that the school is not messing around. The language tends to be very express that illegal activity will not be tolerated and police will be called.  Some people may think these types of reminders (and other disclosures) are not useful.  I think it depends upon the disclosure.  In a post-prom waiver, where the students and parents will be reading it for useful information, such as what to bring, etc, it reinforces expectations and allows parents to set up their own rules in the event the student breaks the school rules (i.e. no leaving the house all summer if I have to bail you out of jail at 3am…)   All the waivers I read were also short and, for the most part, clearly written.

Finally, there are the indemnity type clauses.  Unlike exculpatory clauses (which free the school/host from liability), an indemnity clause makes the student responsible for harm caused to others.  Most of the ones I saw seemed fine – they required the students/parents to assume responsibility for any damages they caused.  Again, I don’t think this gives the host any more rights than they would otherwise have since you are generally liable for any property damage that you cause.  It is useful, however, for setting expectations for conduct.  Sure, you might have to check some of your wild physical activity –  no whirling dervish dancing around the Ming vases – but from the host’s point of view, understandable.  It’s also useful for setting expectations after you break the vase.  You can’t pretend it’s unfair that you have to pay for it because you knew in advance.  Kind of like those “You break it, you buy it,” signs in stores.

I’m still not convinced that these waivers are a good idea although I don’t think they are necessarily a bad idea as long as they are clearly written, short and, most of all, reasonable and limited in scope.  It’s unclear whether they will be enforceable, and again, I think it depends upon how reasonable they are in terms of scope and  process (they are signed well in advance of the event and both the student and a parent/guardian must sign it).  Given our litigious and form contracting society, I don’t think they are going away.