Assumption of Risk Forms: A Legal Blind Spot for Many Churches

Editor’s note: This article has a companion article, “A 16-Point Evaluation for Assumption of Risk Forms.”

Key point 10-16.06. A release form is a document signed by a competent adult that purports to relieve a church from liability for its own negligence. Such forms may be legally enforceable if they are clearly written and identify the conduct that is being released. However, the courts look with disfavor on release forms, and this has led to several limitations, including the following: (1) release forms will be strictly and narrowly construed against the church; (2) release forms cannot relieve a church of liability for injuries to minors, since minors have no legal capacity to sign such forms and their parents’ signature does not prevent minors from bringing their own personal injury claim after they reach age 18; (3) some courts refuse to enforce any release form that attempts to avoid liability for personal injuries on the ground that such forms violate public policy; and (4) release forms will not be enforced unless they clearly communicate that they are releasing the church from liability for its negligence.

Overview: Why Churches Use Release Forms

The purpose of release forms

”The main purpose of a release typically is the voluntary relinquishment of a claim or right by one who, absent the release, could have enforced such a claim or right.” Penunuri v. Sundance Partners, 257 P.3d 1049 (Utah App. 2011).

Churches, schools, and youth-serving ministries often ask event participants to sign forms intended to protect the organization from liability for injuries caused by its own negligence. These are commonly called:

• Release forms
• Waivers of liability
• Assumptions of risk

Many organizations use forms they find online without legal review—a risky move that can render the forms ineffective or even unenforceable.

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Key Points Church Leaders Must Understand

1. What release forms are and how they work
2. Legal requirements for enforceability
3. State law differences
4. Why some forms are rejected by courts
5. Special considerations for minors
6. The role of indemnification and hold harmless clauses
7. How release forms impact insurance and risk management

This article explains each point and summarizes leading court cases involving churches and charitable organizations.

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Definitions and Purposes of Release Forms

A release form is an agreement where one party releases another from liability. It can be:

• Retroactive – Often used in legal settlements
• Prospective – Used before an activity to waive future claims (most common for churches)

Waiver is a legal term for giving up a known right.

Assumption of Risk means a person voluntarily accepts the risk of harm from a known danger.

“Assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him.” —Cohen v. Five Brooks Stable (Cal. App. 2008)

“The main purpose of a release typically is the voluntary relinquishment of a claim or right.” —Penunuri v. Sundance Partners (Utah App. 2011)

Most release forms combine release and assumption of risk language.

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Types of Assumption of Risk

• Express: The participant signs an agreement.
• Implied: The participant knows the risk but proceeds anyway.

“Express assumption occurs when parties agree in advance that one of them is under no obligation to use reasonable care.” —Scott v. Pacific West Mountain Resort (Wash. 1992)

Note: In many states, implied assumption of risk has merged with comparative negligence laws.

Exculpatory Clauses: These are sections of a contract that aim to relieve a party of legal blame. The term comes from “exculpate,” meaning to free from blame.

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Why Legal Counsel Matters

Using generic or out-of-state templates can lead to serious problems. For example:

The importance of legal counsel

The importance of legal counsel in drafting release forms is illustrated by a recent federal court ruling in Tennessee. Hayward v. Trinity Church, 2015 WL 1924552 (M.D. Tenn. 2015).

A federal district court in Tennessee ruled that an agreement between a church and a church employee to arbitrate all employment disputes was enforceable, and therefore a dismissed church employee’s lawsuit seeking unpaid overtime compensation had to be arbitrated.

However, the court noted that the agreement contained a “venue clause” mandating that any arbitration occur in Orange County, California, and referencing several remedies employees can assert before the California Department of Fair Employment and Housing. Clearly, the church was using a template that was intended for use in California, and neglected to make it Tennessee-specific. An attorney would have flagged this provision, and spared the Tennessee church of the needless expense of litigating in California.

In Hayward v. Trinity Church (M.D. Tenn. 2015), a church used a California-based agreement with a venue clause requiring arbitration in California. The court noted this was inappropriate for a Tennessee church and enforceability was compromised.

Always consult an attorney to ensure your release forms comply with local laws and context.

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What Makes a Release Form Legally Valid?

To be enforceable, a release form must meet standard contract requirements:

1. Two or More Parties

• Typically between the church and participant.

2. Consideration

• Something of value must be exchanged.

Example: Valid Consideration

“In consideration of participating in [event], I release the church from liability.”

Example: Invalid Consideration

“I release the college from liability.” —No benefit is offered in return.

Courts do not assess the amount of consideration. Even a “peppercorn” is enough. —Mandel v. Liebman (N.Y. 1951)

3. Definiteness

• Terms must be clear and understandable.

4. Legal Capacity

• Parties must be mentally capable and at least 18 years old.

5. Mutual Assent

• Must be a “meeting of the minds.”
• Cannot be obtained through fraud, mistake, undue influence, or coercion.

6. Legality

• The agreement must not violate public policy or seek to excuse gross negligence.

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Why Some Release Forms Fail

Courts may invalidate release forms for:

• Gross negligence or intentional acts
• Lack of consideration
• Ambiguity
• Unequal bargaining power
• Violating public policy
• Unconscionability (overly harsh terms or hidden clauses)

“The law does not favor exculpatory agreements because they encourage a lack of care.” —Walters v. YMCA (N.J. App. 2014)

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Special Issues with Minors

Most states do not allow:

• Minors to sign enforceable contracts
• Parents to waive a child’s future injury claims

“The strong policy in favor of protecting children must trump any competing interest.” —Galloway v. State (Iowa 2010)

A few states have laws allowing parental waivers, but often only for specific activities (e.g., skiing, equine events) and with limits.

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Practical Implications for Churches

Church leaders should:

• Always consult legal counsel when creating or using release forms
• Avoid relying on templates without state-specific review
• Be aware that gross negligence cannot be waived
• Understand that forms signed by or on behalf of minors may be unenforceable
• Use clear, unambiguous language in all documents

Risk management tip: Even with a valid release form, insurance coverage may still be affected by how courts interpret liability.

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Conclusion

Release forms are useful risk management tools, but they come with strict legal standards. Courts scrutinize them carefully, especially when they attempt to waive claims involving minors or gross negligence.

Churches that understand these legal nuances—and craft their forms accordingly—can reduce risk and better protect themselves legally.