Contract can protect against liability for school use

Like most other states, Massachusetts has laws that encourage school districts to open their facilities, such as gymnasiums, playgrounds, athletic fields, tennis courts, pools and tracks, to the public during off-hours.

Section 71 of Chapter 71 encourages districts to “promot[e] the usefulness of public school property” by allowing its use “by individuals and associations for such educational, recreational, social, civic, philanthropic and like purposes” as deemed in the interest of the community, so long as doing so doesn’t interfere with normal school activities.

Section 71B of the same chapter provides that “[a] school committee may offer adult physical fitness programs to be held in the gymnasium of any school at any time during which such gymnasium facilities are not being used for school purposes.” And Section 71C permits municipalities to charge a fee for facility use.

Despite this encouragement, however, and the need to promote physical activity in order to combat rising rates of obesity and other health risks, many school districts bar after-school use of their facilities due to concerns about cost, vandalism, security, maintenance, and liability in the event of injury.

Informal agreements or verbal understandings are generally insufficient to address these concerns. But a “joint-use agreement” could help, by establishing the terms and conditions for use of school property.

Most joint-use agreements are used for opening school facilities during non-school hours, with the parties being a school and a municipality. The agreement may also authorize a third party to operate a program at the school.

Municipal attorneys advise that the joint-use agreement clearly articulate the responsibilities of each party, including issues regarding maintenance, operations (custodians, bathrooms), liability, cost, and a process to address any conflicts.

There is no standard joint-use agreement model, but four examples can be found on the website of the California organization Public Health Law & Policy (www.phlpnet.org). PHLP works to engage public health advocates in local policy-making to improve public health. [The four examples are specific to California, but much of the language is sufficiently generic to be used in Massachusetts.]

The PHLP website provides a memo regarding liability specific to each of the 50 states. “Liability Risks for After-Hours Use of Public School Property to Reduce Obesity: Massachusetts” addresses state statutes as well as pertinent case law. The report provides a basis for municipal counsel to determine the parameters of a joint-use agreement.

The Massachusetts recreational user statute (M.G.L. Ch. 21, Sec. 17C) provides some liability protection to schools and municipalities for voluntary after-school use of school facilities by the public. The law provides that anyone, including a municipality, that permits the free use of its property for recreational activities is not liable for any injury sustained by someone using the property.

To rely on this law, however, the user must not charge a fee. For events that charge admission fees, municipalities may want to review the language of any existing agreements, such as those for high school football games.

Another protection available in Massachusetts is the use of a liability waiver contract.

For more information, visit www.phlpnet.org or www.jointuse.org, or contact D.J. Wilson at the MMA.