L.L. attended Brewster, a private boarding school in New Hampshire. During her sophomore year, she applied for and was accepted into a study abroad program (Program) to Tenerife in the Spanish Canary Islands. Entry into the Program was contingent on L.L. and at least one parent signing a trip agreement (Agreement). The Agreement contained several provisions to limit Brewster’s liability and indemnify Brewster for claims related to the trip.
In December 2019, L.L. (then fifteen years old) and her mother Jane signed the Agreement. The parents also paid a fee on top of Brewster’s regular tuition price for L.L’s participation in the Program. The fee covered twenty-four hour medical and travel security assistance and advice, and twenty-four hour “on-call support” from Brewster.
The trip to Tenerife was scheduled to last about two months, from January 6, 2020 to March 9, 2020.
L.L. traveled to Tenerife as scheduled on January 6, 2020. While in Tenerife, L.L. stayed with a host family. Other than the students’ arrival and departure from Tenerife, the Program did not involve other international travel, so the students did not need their passports. Brewster instructed students to safeguard their own passports.
Although the trip was supposed to end on March 9, 2020, there were multiple confirmed cases of COVID-19 on the Canary Islands by late February, including four on Tenerife. On February 26, Brewster informed the parents that due to the outbreak, Brewster would be evacuating the students and would return to the United States on February 29.
On February 28, one of the Brewster faculty members supervising the Program texted each of the students and asked them to respond with a photograph of their passport. L.L. could not find her passport, and a faculty member told L.L. that she could not fly back with the other students. The faculty member sent L.L. a text message with a “shoulder shrug emoji” and said “it is what it is. Calm down, relax, there’s nothing you can do about it now.”
Brewster did not inform L.L. where she would stay or who would supervise her if she could not travel to the U.S. with the other faculty and students.
On February 29, the students and faculty flew to Madrid. The same morning, Brewster explained to L.L.’s parents that Brewster left her with two Brewster teachers. Although these two teachers remained in Spain, neither called nor visited L.L. after she was left behind. One of them contacted L.L. once by text.
Jane flew to Tenerife and arrived on Sunday, March 1, 2020. After obtaining an emergency passport for L.L. at the U.S. Embassy in Madrid, L.L. and Jane returned to the U.S.
Upon returning to the U.S., L.L. struggled with her mental health, including suffering from anxiety, depression, an eating disorder, bipolar disorder, and post-traumatic stress disorder. L.L. sued, seeking relief for the injuries she alleged Brewster caused by leaving her behind in Tenerife.
The School moved to dismiss the claims, arguing that by signing the Agreement, L.L. and Jane released Brewster from any liability arising out of L.L’s participation in the program. Specifically, Brewster pointed to the Waiver and Release, where L.L. and Jane promised not to sue Brewster for “any and all liability or claims” with the exception of claims for intentional wrongdoing that were related to L.L.’s participation in the Program. In response, the family argued that the release was unenforceable under New Hampshire law.
In evaluating the contract, the Court noted that it typically upholds this type of contract if: (1) the contract does not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in the same position would have understood the import of the agreement; and (3) if the plaintiff’s claims were within the contemplation of the parties when they executed the contract.
Here, the issue was whether the contract complied with public policy. L.L. argued that a special relationship existed between herself and Brewster, meaning that the contract was not enforceable. The Court agreed.
The Court noted that due to the important and compulsory nature of education, New Hampshire has held that schools have a special relationship with their students, which imposes a duty of reasonable supervision on schools. The Court also noted that a special relationship exists between a school and its students because school attendance impairs both the ability of students to protect themselves and the ability of their parents to protect them.
Here, the duty was even more pronounced because the Program separated parents and children across international borders. The Court reasoned that L.L.’s parents depended on Brewster to supervise L.L. and could not rely on an exculpatory contract to avoid liability for acting negligently while entrusted with her care.
Brewster argued that the special relationship only extended to reasonably foreseeable risks, and that L.L. losing her passport was not foreseeable. The Court disagreed and found that a student losing their passport was reasonably foreseeable. Brewster’s request for photocopies of the passport before the trip indicates that the School may have foreseen this risk.
The Court also separately noted that under New Hampshire law, a parent does not have the authority to bind their minor child to a contract waiving liability for an injury before the injury has occurred. Therefore, the Agreement would have been unenforceable for this reason as well.
Therefore, the Court found that the Agreement was unenforceable under New Hampshire law and denied the School’s motion.
Lovering v. Brewster Acad., 2024 DNH 070.
Note: While field trip waivers are a necessary component of a school field trip, they do not shield schools from all liability, as was the case here.