Not necessarily a post you would be expecting as part of the Firm’s “Summer of Law” series, but as we approach the end of high school prom season, we wanted to write about post-high school prom liability waivers that have received some attention (See New York Times Article titled “Prom Accessories: Corsages, Limousines and Liability Waivers).
Drafting liability waivers, releases, settlement agreements and confidentiality agreements are very common requests in our practice for anything from our clients who are professional service providers, trainers, in the arts and entertainment field, entrepreneurs, schools and individuals, too. We have not [yet] been asked by a client to draft or markup a liability waiver for a post-prom party, but the Article raises some interesting questions that parents grapple with when either hosting or sending their kids- who are mostly a few months or a year away from heading off to college- to parties after a prom. Questions ranging from “we are hosting a post-prom party for our child and their friends, should we ask the kids (assuming they are over 18) and parents of kids attending to sign a liability waiver?” and “I am a lawyer and received a draft of a proposed liability waiver from the party hosts, should I redline the heck out of it and how will that affect my kid.”
While my kids are still too young to be on the post-prom-party circuit, I do find myself asking the question of where would I fall out on the spectrum? Analogously, the questions- “to draft or not to draft?” or “to redline or not to redline and if so how much?”- are similar questions many clients- business, individuals and schools alike- ask our office with frequency. It is certainly true that you can at least attempt (provided the law permits) to draft a waiver or agreement for virtually any scenario. But often, there are business considerations such as optics, enforceability, messaging and reputation that our clients raise when we are advising on drafting waivers for certain situations. There is a level of risk and potential for liability that as members of society we assume on daily basis just walking out the door in the morning when we get into our cars, hail a taxi, drop our kids off at camp or catch a flight. In business, we do the same, and it’s deciding what risks we find acceptable, how we mitigate those risks and what agreements are appropriate, however each individual or business may define “appropriate.”
As for the post-prom party liability waiver itself, I will have to defer more in-depth thoughts until a client asks us to review one of these waivers or wait the dozen or so more years until my oldest child is eligible to attend a post-prom party.