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CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10244
Experience:  Civil litigation attorney for individuals and businesses.
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This is a personal injury type question. When children in

Customer Question

This is a personal injury type question. When children in school go on field trips, the parents are asked to sign a release of liability document indicating that they will NOT hold the school liable for accidents that might occur on the field trip. When this type issue came up in a conversation with an attorney we know he remarked that that a person cannot sign away his constitutional rights.Therefore, the question is whether these releases will hold up in court and actually protect the school
Submitted: 1 year ago.
Category: Legal
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

Unfortunately this kind of conversation held in a void is not very productive. While these releases are in general helpful and can be used, they are certainly not "bullet proof."

Furthermore, they do not insulate the school from grossly negligent, or intentional, actions by their employees (teachers or staff), and the school cannot protect itself from placing children (or parent volunteers for that matter) in dangerous situations.

The waiver is at best a "good practice" for a school as it can be a good defense against some claims for simple negligence. (If I were defending a school district and had a waiver on hand, I would certainly try to use that as a waiver of liability).

I will also tell you that most schools use those documents primarily for purposes of getting advance permission to treat. In the event that a child is injured on a field trip or outing, the school needs permission from the parent to treat the child (both with first aid, and in having the child admitted to a hospital or treated by a physician). Having these forms on hand is extremely important as it is "express consent" to treat the child.

I am not sure what the attorney friend you had was referring to with signing away Constitutional rights (defendants do so all the time in criminal court, usually against the better advice and instruction of their court appointed lawyers), but I understand his basic point - courts are very reluctant to enforce a waiver of any right when the party's waiver is uninformed, it is difficult to have an "informed waiver" when any potential injury or claim is merely theoretical (your child is going on a trip, he or she may be injured in some way, now please sign this document to waive all civil recourse against the school, which may be responsible).

Customer: replied 1 year ago.

I want to ask another question related to this issue of release of liability. I would rather have you answer than start all over.
I will pay at least $60 bonus if you can address this issue of using such a release and paying for the release, which the payment of money for the release might make a difference in it effectiveness.

If Mr. Smith rents a house to Mr. Jones, how can Mr. Smith relieve himself of liability?

I assume that first he (the owner) should get liability insurance on the rental property. Also he can convert the house and lot into an LLC and thus limit his liability to the value of the property. Is that correct?

However, can he INSTEAD get the renter, Mr. Jones, to sign an agreement whereby the renter assumes responsibility for the safety of the dwelling and agrees not to hold the owner liable for injuries that might occur on the property to the renter, his family, or anyone visiting him be it licensee or invitee of renter?

Would this require that Mr. Smith, the owner, contribute something of value? Perhaps the house should rent for $800 per month, but in exchange for the agreement, the owner charges only $600, thus giving the renter $200, something of value in exchange for the agreement.

Expert:  CalAttorney2 replied 1 year ago.

As this is for a residential rental unit, Mr. Smith cannot transfer all liability for the home in this manner (with or without payment to the tenant). If this was a commercial lease, the answer would be different, but public policy prevents a contract of this kind from shifting all liability for the property from the residential landlord to the residential tenant.

However, here are the risk limiting measures a prudent landlord can (should?) take:

  • Taking out a reasonable insurance policy. It is usually a good idea to have both a specific policy for the rental unit itself, and an umbrella policy. If the unit is owned by a separate entity (see below), then it may be necessary (as opposed to advised) to have 2 separate policies. An insurance agent or broker can help Mr. Smith find the best policy to assist him in finding a reasonable policy to cover the property given the age of the structure, the fact that it is being used for a rental unit, and any special considerations (such as construction, remodeling, safety measures, etc.).
  • Set up a separate legal entity (LLC or a Corp.) to hold the property. This will separate the rental unit from the remainder of Mr. Smith's property. This way, if there is a loss associated with the property, Mr. Smith's losses will be limited to the rental unit (the LLC's assets) and will not extend to the remainder of his assets. (There are some exceptions: (1) if Mr. Smith is acting as a personal guarantor for anything, such as the mortgage, the creditor can still pursue him individually; (2) if Mr. Smith commits his own tort (for example, he injures his tenant while repairing part of the home - both the LLC and Mr. Smith are liable for his negligence, we are always liable for our own torts); or (3) if the LLC is "undercapitalized" (but if Mr. Smith has an insurance policy this isn't going to be an issue, and any "veil piercing" argument is going to fail).
  • Mr. Smith can require tenants to obtain renter's insurance and name him (or his LLC - if he has the property in an LLC) as an "additional insured"). This way, if the tenant causes damage, Mr. Smith can make a claim directly against the tenant's insurance company.
  • Mr. Smith can also take steps to increase his tenant's awareness (either directly or through a management company), actively repairing damage to the unit, educating the tenant on utility shut offs, fuses, and other safety issues in the home, as well as encouraging reporting of damage can help reduce the incidence of more significant damage. (Many landlords simply hand the tenant the keys and walk away, leaving the tenant to find these things themselves, it doesn't take more than 30 minutes to an hour to show a new tenant around the home, and most repairs can be done quickly and inexpensively to keep them from getting out of hand later).