Fall 2003 - Volume 6 Number 1
Limiting Risk and Responsibility in Study Abroad: Are Waivers Good Enough? Introduction
The number of students registered in post secondary institutions who participate in study abroad programs is rising. The number of students who participated in study abroad in the United States in 199596 was 89,242. In 2002, that numbered increased to 154,168 (NAFSA, 2003). In Canada, even though the numbers are lower, the trend is identical. In 199495, 28,280 students went abroad, and in 199899, 30,225 (OECD countries only) participated in a study abroad program (CBIE 2001). While this is good news for educators, it is also leading to increased discussions of the risks and responsibilities that are being faced by educational administrations.
These discussions, while frightening to some, are in fact a positive outcome. It is forcing universities and colleges to face the realities of risks that are inherent in study abroad activities. This is especially important with the new double cohort that has resulted from recent changes in education in Ontario. These students will be younger than their predecessors and universities and colleges must be prepared to deal with that aspect and any changes this imposes on the level of responsibility for institutions, as some may be minors. As well, the incidents of 9/11 have made the issue of student safety the primary focus for study abroad program administrators, especially in the United States. They have even started to issue recommendations that students not wear any logos or insignias that would identify them as American citizens. (Hoye, 2003).
While this is specific to the U.S., other changing aspects in the nature of study abroad are affecting Canadian programs as well. Participation in programs to countries that were once considered too dangerous to travel in is on the rise. Destinations such as Honduras, Ecuador, South Africa and Vietnam are becoming more popular (Kast 1997). One can hypothesize that this can be due to greater levels of development and increased level of bursary funding from public and private agencies attempting to lure willing and able young and bright minded students to programs established in those countries.
This paper will review some of the legal ramifications of students participating in study abroad opportunities at post secondary institutions and what some recent trends in this area are. This is by know means meant to be an exhaustive discussion, but a glimpse into what could be a very deep and dark crevice that institutions could quickly find themselves in should they not take certain critical steps to protect both themselves and their students. The basic concepts of liability, negligence and waivers will be discussed. Recent and relevant cases will be used as examples of what has happened around issues of liability for universities and colleges. Finally, procedures that may reduce the risk and responsibility that institutions face will be outlined.Definitions
What exactly is study abroad? There has been some debate by professionals in this area over the years, albeit somewhat limited. There appears to be consensus that it is any program that students participate in that takes place outside of Canada. This is the most general of definitions. However, the debate starts when one begins to consider such things as length of time, for credit or not for credit, arranged/ sanctioned/ sponsored by an educational institution, and financial aspects. Some believe that is it not a study aboard if it is not for credit. It is simply "abroad". Others are of the opinion that anything less than 4 weeks is not a study abroad experience, but leisure travel. However, all of this is actually not central to this discussion.
There are risks involved with any travel. In fact, one could take this one step further to include any travel outside the scope of knowledge of the participants. Many would state that their may be greater risks to participants who travel to Nunavut than the United Kingdom. Therefore, it is proposed for the purposes of this discussion that the most basic and inclusive definition be applied. Students are at risk whenever they participate in programs sponsored by post secondary institutions, wherever they may be. It will be demonstrated later this aspects of the definition may impact the liability of an institution with respect to duty of care.
Central to this topic is the concept of negligence. According to Black's Law Dictionary, the legal definition is:
"The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do." (p. 716)
Just how does this impact study abroad programs? There are many aspects of study abroad that if not properly addressed, could leave an institution open to legal action. How well prepared are the students? How involved is the institution in the activity? Is it an overseas campus owned and operated by the Canadian Institution? How much of an assessment of the program has been done by the university prior to sending students? These are all questions that should be addressed.
One tool that is often used to limit liability is a waiver. The definition of a waiver appears to be lengthy and complex. However, in the simplest of terms it can be defined as the voluntary, intentional relinquishment of a known right, which for the purposes of this discussion, is the right to sue an institution should something happen to a student while participating in a study abroad program.
Why should this be an area of concern for institutions? Obviously, they would want to reduce the chances of any legal action be taken against them with respect to study abroad activities. However, it is also in the best interests of the students to ensure that these issues have been fully addressed. By reviewing the challenges of operating study abroad activities, institutions have the opportunity to identify areas of risk for both themselves and their students, and to put in place programs and processes that reduce the risk of events that could lead to legal action. Therefore the programs will become safer for students and they will be better informed and/or prepared to participate. Will this completely remove any possibility of legal action? I would suspect not. There are always events that could occur that could lead to problems for both the student and the institution. However, if the university or college has done its work, or due diligence, it should be able to identify foreseeable risks, prepare and inform the students of that risk, and therefore reduce the liability of the institution.Waivers
How can institutions protect themselves from liability? One solution is to have the students sign a waiver. If this is the chosen route, then what are the considerations for a waiver to be effective? Weir and Theile (1999) list a number of issues to be considered when drafting a waiver form. First, the student should not be a minor. They are not able to waive their rights so they should not sign it. it must be signed by a parent or guardian. This may become an issue with the double cohort and younger students attending universities and colleges. When it is signed, it should be signed in the presence of a witness. The student signing should be made aware of any and all known risks prior to the signing of the waiver and should be able to read all documents pertaining to the activity at their leisure prior to signing the waiver document. It is important to note that the student should not be pressured into signing the document or feel rushed in anyway. The document should be easy and clear to read and not be contained within another document or be written in small font or unreadable for other reasons.
Other information suggests that one should ensure that the participant has not changed or crossed out any wording, and that the participant did not appear to be incapacitated at the time the waiver was signed (University of Lethbridge, 2003).
An interesting aspect of the waiver process is the notion that the party was informed of all risks prior to signing the waiver. This once again comes back to the notion of informed consent (Farris, 2003).
What happens if the student states that they are not going to sign the waiver? That is a very interesting question which could be discussed at length. However, two opinions on this matter appear in the literature. Students should not be allowed to participate in the activity if they do not sign a waiver (University of Lethbridge 2003, University of California, Santa Cruz, 2003), or should be able to participate in a modified version of the activity that does not require the signing of a waiver (Hanson and Myles, 1997). The question then becomes how can this be implemented in a study abroad program? Interesting dilemma indeed.
The one thing that waivers will not prevent is a lawsuit. An institution may still find itself a party to legal action even if they have well drafted waivers. The saving grace, so to speak, is that a well drafted waiver may result in the successful defence of a lawsuit.Cases
Will a waiver always work in favour of the party seeking protection? It has been suggested that this is not the case. The case of Crocker v. Sundance Northwest Resorts Ltd, 51 DLR (4th) 321, (1998) 1 S.C. R. 1186, 29) O.A.C.1 demonstrates the ineffectiveness of a waiver if some of the conditions previously mentioned are not followed. Here, the Supreme Court of Canada found for the plaintiff in a skiing accident. They dismissed the waiver as there was no attempt to draw the release provision to Crocker's attention, that he did not read it, and that he did not know of its existence. He thought he was simply signing an entry form.
Very similar cases involving injuries to skiers at ski resorts can been citied to demonstrate the effectiveness of waivers. In McQuary v. Big White Ski resort Ltd (unreported, file no. 901214 (October 4,1993, B.C.S.C. and in Dawe v. Cypress Bowl recreations Ltd., unreported, file No 01933 (November 24,1993 B.C.S.C.), the courts found that the exclusion of liability clauses at issue did apply. In both these cases, the language used for the waiver and the method of notification (printed on the back of the ticket and signs posted) was identical. However, in Greeven v. Blackcomb Skiing Enterprises (1994), C.C.L.T. (2d) 265 the court found the liability clause did not apply even though the conditions and the language of the waiver was identical to McQuary and Dawe. What was the difference? Greeven was distinguished from the other two cases based on the degree of knowledge the plaintiff possessed about the geographical area and the activity. Greeven was a tourist to Canada and had never skied in the area before. Also, the clause was in relatively small print and they had never seen the notices. It has been alleged that "it is better to look at what judges want do and not what they say. Judges will find notice when they want to deny liability, but will find no notice when they want to impose liability." (Wier, and Thiele, 1998, p.87).
There appears to be very little case law around the issue of study abroad in Canada. This could be for any number of reasons. First, Canadian universities and colleges could be very fortunate, and there have not been any major events in this area involving their students, and hence no legal action has been required. Second, the number of lawsuits in Canada in general tends to be lower than that of the United States. Even when you take into account the population differences, Canada appears to be less litigious than the United States. Third, it could be that disputes are settled before they have the opportunity to become a full blown court case. One could suggest it may be a combination of all three.
As Canadians, we are less litigious than our U.S. counterparts. Also, there are examples where Canadian institutions offer some assistance to injured parties even if there is no evidence of negligence. There was an incident in 2001 involving a student from an Ontario university who was on a study abroad program in Germany (Queen's University, 2001). He had been there for the academic year, and was doing some traveling in Switzerland two weeks prior to his return to Canada. During a hiking trip in the mountains, the student slipped off of the path, and fell, hitting his head and unfortunately sustained a fatal Injury. The student, in order to save money, did not opt for an all inclusive insurance policy, but for one that only offered basic coverage. Therefore, his parents were left to pay the bill to repatriate his remains. This is a very expensive process, which can cost up to $20,000. Unfortunately, his parents did not have the resources to pay for this. The university offered to assist the parents with these costs even though there was clearly no liability on the part of the university. Does this happen more than we know? Is this a reason why some potentially damaging cases never make it to trial? Are Canadian institutions eager to solve issues in this area before any legal action is contemplated?
However, this may not be particular to Canada, but more associated with the genre of the activity, i.e. study abroad. There is a similar case involving the University of Florida. One of their students, who was participating in a study abroad program in Bolivia, was severally burned in an accident. The student had not purchase additional insurance prior to their departure as they felt they could not afford it. As a result, the university paid all expenses for on site medical treatment and the emergency evacuation of the student (which amounted to $50,000) stating that "they felt a responsibility to take care of the student." (Kast, 1997, p. 4)
One aspect present in the area of negligence is that the institution has a duty to warn the students of any known hazards that may be present in a particular study abroad program (Hoye, 2003). Is it sufficient for institutions to assume that information that is available to the public about laws and customs in another country has been accessed by students, and they are therefore informed? For example, spitting in public and selling chewing gum is illegal in Singapore (Department of Foreign Affairs and International Trade, 2003). The institution must also be cognizant of the various constituencies within its student body to ensure they adequately inform and prepare all students. For example, homosexuality in Singapore is illegal and could result in lengthy jail sentences. Therefore, institutions have a duty to inform any students participating in programs in Singapore of these rules, and their consequences, As they are not illegal in Canada, students may incorrectly assume that they are legal in Singapore. However, if the institution knows that certain activities that are normal everyday occurrences in Canada are illegal elsewhere, then they have a duty to inform/warn students of them.
The case of Nova Southeastern University, Inc., etc., vs. Bethany Jill Gross, Florida Supreme Court, (No. SC94079), (March 30, 2000) goes to the heart of the matter of informing students. In this case, a graduate student was robbed and sexually assaulted in the parking lot of the Family Services Agency where she had been assigned to an internship by the university. The plaintiff stated that there had been attacks prior to hers in the same lot, and that the university knew ~this prior to placing her in the internship. They therefore should have informed her of these facts. The university contended that she was an adult, that she knew about the attacks, and that the failure of the university to warn her did not cause the injuries.
The trial court rejected the lawsuit, stating that the university did not have to tell the student about the previous attacks. However, this was overturned by the appeals court stating the lawsuit against NSU could go ahead. The Supreme Court upheld the decision of the appeals court. It stated that because the university made the placement, it owed a duty of care to ensure the safety of the students. The ruling judge stated:
"'As the court said in Silvers v. Associated Technical Institute, Inc....'students ... could reasonably expect that the school's placement office would make some effort to avoid placing (students) with an employer likely to harm them! This is the type of duty owed under the circumstances of this case."
The issue appears to be one of informed consent. That is to say, has the institution provided all the pertinent and sufficient information to students so that they can make an informed decision as to whether or not they should participate in a given study abroad program? In Canada, many institutions are now conducting Predeparture Orientations for all students who are going abroad. These are programs that are given by informed professionals in international education and cover such topics as culture shock, health insurance, visas, and local customs and laws. While it is virtually impossible to inform students of all the potential risks, they are provided with a vast list of resources that they can check for valuable information, such as the website for the Department of Foreign Affairs and International Trade, so that they can get the information they need to make an informed decision.
There are some cases, particularly in the United States that may have assisted in the realization that institutions should be proactive in this area. One such case involved a student of a small Christian college in California who contracted a skin disease while on a study abroad program in Costa Rica (Maho, 2001). Central to the case was the issue of negligence in that the institution did not inform the student about the risk of contracting such a disease. It was learned that the college had no prior knowledge of this disease so how could they warn the student about something they did not know. However, should they have known? Did they not perform due diligence to the level required? This lawsuit was settled just two weeks before trial, so the outcome is not known. However, it is an interesting situation that should not be discounted.
The facts surrounding the tragedy involving the Semester at Sea program are also relevant to this discussion (Hoye, 1999). The central issue of this case is whether or not the Semester at Sea program and the University of Pittsburgh are guilty of negligence when they placed students on a bus on a busy highway in India at night in order to go to the Taj Mahal. The bus was involved in a accident killing four American students. The highway, stated sometime prior to this incident in Time Magazine as the most dangerous highway in the world, allegedly was a risk the institution should not have exposed the students to, and that the institution should have known this. (CBS, 1998)
When do institutions of higher education have to be concerned about liability? The law indicates that institutions have a duty of care to their students to inform them of the risks involved. The degree of this duty will vary depending on the program (Kast, 1997). If it is a program that students locate on their own, and do not receive credit for, there is a very low duty of care. Contrast this with a program that is sanctioned by the home institution or in a facility owned and operated by the home institution. In this case the duty is much greater.
Does the duty of care and duty to inform end with the departure of the student? A case involving a student at Earlham College who was participating in a study abroad program in Japan deals directly with this issue (Guernsey, 1997). While in Japan, the student was living with a host family assigned by the Japanese partner institution. A short time after she arrived in Japan, she was allegedly sexually harassed on several occasions and raped by the father of the host family. The student claims that the university did not act appropriately after she had repeatedly reported the harassment activities of the father to both the host institution and Earlham College.
The university claimed that this was not the case, and was relying on the content of the waiver signed by the student to absolve them of any liability. However, lawyers for the plaintiff state that the policies in place at the College for dealing with sexual harassment cover all programs of the College, and that the program in Japan is one such program. They also state that the waiver cannot exempt an institution from civil rights laws.Other Means of Protection
Perhaps a waiver is not the only protection that institutions should rely on. One of the other uses of a waiver is to provide an opportunity to inform students of the risks and responsibilities associated with participating in a study abroad program, and to allow students to make informed decisions. However, the available literature also suggests several other ways in which institutions can protect themselves and their students.
It has been suggested that institutions can do the following to increase the awareness of students to risk, and also protect the institution from legal action (Myles & Hanson, 1997, NAFSA, 2003, Hoye, 2003). Institutions should ,determine which of their programs appear to place students at risk. This requires constant monitoring of events in those areas, and the ability to assess their impact on study abroad programs. Site visits should be done on a regular basis by faculty members and/or administrators to carefully evaluate local conditions and report on any areas of concern. Processes should be designed to handle the emergency evacuation of students should the need arise, and make sure that students and parents are aware of the process. Access to funds to be able to put the plan into action should be readily available. Home campuses should make sure that they have emergency contact information for all students in their programs abroad so they can contact the correct people at the host institution should the need arise.
Program administrators should consider health and safety issues in evaluating student participation in a study abroad program. This should include an audit of medical and professional services available at the host location to ensure that any special needs of the student can be easily met.
Often times it is the smaller programs or individual faculty travel that "falls between the cracks". Institutions should have a centralized program in place that will offer the same assistance to traveling faculty and administrators so that they may be captured in the informing process.
Finally, all documentation including any waiver forms and the informing process should be reviewed by the institution's legal counsel to ascertain whether or not procedures still provide adequate protection for the students and the institution or if they should be updated.Conclusion
Study abroad activities involving students enrolled in universities and colleges are increasing. It has been noted that there have been instances where incidents affecting the health and well being of students has occurred, impacting the institutions. While this is not an exhaustive discussion of this topic given the confines of this paper, and there are no guarantees an institution will not experience difficult situations in study abroad programs, there are steps that can be taken to minimize the occurrence of these types of events to protect both the student and the institution from harm.
Waivers can be an effective tool to assist in these matters, provided the administration ensures that the conditions for a waiver to be valid and effective are met. However, they are not the only line of defense that institutions and students should rely on. Instead, the discussion around the use of waivers between students and the home institution should be used as an opportunity to begin a process of informing all participants of the risks and responsibilities involved in study abroad.
The combination of waivers, processes for providing the opportunity for students to provide informed consent, and other suggestions listed in this discussion, if properly implemented, can assist universities and colleges in providing safe and rewarding programs for their students.Cases Cited 1. Crocker v. Sundance Northwest Resorts Ltd, 51 DLR (41h) 321, (1998) 1 S.C. R. 1186, 29) O.A.C.1.
2. McQuary v. Big White Ski resort Ltd (unreported, file no. 901214 (October 4,1993~ B.C.S.C.
3. Dawe v. Cypress Bowl recreations Ltd., unreported, file No 01933 (November 24,1993 B.C.S.C.).
4. Greeven v. Blackcomb Skiing Enterprises (1994), C.C.L.T. (2d) 265.
5. Nova Southeastern University, Inc., etc., vs. Bethany Jill Gross, Florida Supreme Court, (No. SC94079), (March 30, 2000). Bibliography Black, Henry Campbell, Black's Law Dictionary, sixth edition, West Publishing Company, St. Paul, Minn, 1991
Columbia Broadcasting System (CBS), "At Your Own Risk", Private Eye with Eric Gumbel, Andrew Wolff, producer, Rich Koppel, Editor, January 21,1998.
Cherniak, Earl A. & Kryworuk, Peter W. "Exemption Clauses and Waivers of Liability Are They Effective?", Business and the Law, Vol. 2 Num. 9, Richard De Boo Publishers, Don Mills, Ontario, September 1985, pp 92 93.
Diamond, Stewart H. and Mueller, Henry, E. PreActivity Waivers and Releases of Liability, Illinois Parks and Recreation, http://www.lib.niu.edu/ipo/ip890322.html.
Ende, Howard, Anderson, Eugene & Crego, Susannah, "Liability Insurance: A Primer for College and University Counsel", The Journal of College and University Law The National Association of College and University Attorneys and the Notre Dame Law School, Volume 23, Number 4. Spring 1997.
Guernsey, Lisa, "Suit Raises Questions About Liability in Study Abroad Programs", The Chronicle of Higher Education, April 11, 1997, http://chronicle.com.
Hanson, Lynne & Myles, Wayne, "Risk and Responsibility in Study Abroad: An Examination of Risk Assessment and Legal Responsibility in University and College Study Abroad Programs", CBIE Research No. 11 Ottawa, 1997,
Hoye, William P., "Safety for Americans Abroad", The Chronicle of Higher Education, April 4, 2003, http://chronicle.com.
Hoye, William P. "The Legal Liability Risks Associated With International Study Abroad Programs", 131 Ed. Law Rep. , (Feb. 4,1999).
Kast, Richard C., "In Loco Parentis and the 'Reasonable Person': Liability Issues in International Studies Programs", International Educator, NAFSA: Association of International Educators, Volume VII, No. 1, Fall 1997/ Winter 1998.
Maho, Tyrone, "Looking at Health and Safety Issues from the Perspective of a Trial Attorney", SAFETI On Line Newsletter, University of Southern California, Volume 2, Number 1, Winter 2000 Summer 2001.
Ministry of Attorney General, Province of British Columbia; Report o Recreational Injuries: Liability and Waivers in Commercial Leisure Activities, Law Reform of British Columbia, 1994.
NAFSA, Association of International Educators, "Responsible Study Abroad: Health and Safety Guidelines", Promoting Health and Safety Abroad http://vvww.secussa.nafsa.org/safetyabroad/guidelinesl298.html, 1998.
UNESCO, "Canadian PostSecondary Students Abroad by Major Destination, 1985 86 to 1998 99", UNESCO Statistical Yearbook, UNESCO Institute for Statistics, Montreal, 2000.
University of California Santa Cruz Risk Management, Waiver of Liability, Assumption of Risk, and Indemnity Agreements http://www.ucsc.edu/matman/risk/waivers.htm.
University of Lethbridge, Insurance and Risk Management, The University of Lethbridge Guidelines for The Administration of Waivers http://uleth.ca/ins/guidelines/html.
University of Southern California, Crisis and Risk Management Managing Program Sponsored High Risk Activities http://www.usc.edu/dept/education/golbaled/irl/irlcd4.html
University of Southern California, Program Administration Legal Issues. http://ww.usc.edu/dept/education/golbaled/irl/irlcall.html
Weir, Jan & Theile, Stephen A., "Making Sense of Exemption Clauses", Advocates Quarterly volume 21, 1999, pp 71 93.
Eric LeBlanc is a M.Ed. candidate at the Ontario Institute for Studies in Education/University of Toronto, and he is the Manager or International Programs at Queens School of Business.
• The views expressed by the authors are those of the authors and do not necessarily reflect those of The College Quarterly or of Seneca College.
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