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.

Many churches, schools, youth-serving charities, and recreational venues attempt to reduce the risk of liability for injuries occurring during sponsored events by having participants sign a form that purports to exempt the host organization from liability for injuries caused by its own negligence. Such forms typically are called release forms, waivers of liability, or assumptions of risk. All too often churches and other organizations use forms found online, with no legal input or review. This can result in forms that are useless or of limited value.

There are a number of important considerations that church leaders should understand about release forms, including the following:

• Definition of release forms, waivers of liability, assumption of risk forms (collectively referred to as “release forms” in this article).
• Legal requirements for a valid release form.
• Relevance of state laws.
• When release forms are rejected by the courts.
• Injuries to minors.
• Indemnification agreements and hold harmless clauses.
• Impact on insurance coverage and risk management.

Each of these considerations is addressed below, along with a summary of all the leading cases involving release forms used by churches and other charitable organizations.

Definitions

A “release form” is a form, signed by two parties, in which one party releases the other from liability for specified risks. Release forms can be retroactive or prospective. A retroactive release is one that ordinarily is executed as part of a settlement of a legal claim. A prospective release is one that purports to relieve one party from liability for legal claims arising after the release is signed. Prospective releases are the most common form of release used by churches and other charitable organizations.

The term “waiver” is generally used synonymously with “release,” and is defined as “the intentional relinquishment of a known right.”

An “assumption of risk” is similar to a release agreement. As one court observed: “In its most basic sense, 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, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” Cohen v. Five Brooks Stable, 159 Cal.App.4th 1476 (Cal. App. 2008).

While release agreements and assumptions of risk are similar, there are subtle differences. Most importantly, a release agreement seeks to mitigate risk by having one person release another of all risks, while in an assumption of risk, one party voluntarily assumes all known risks of a particular activity. Often, release forms combine both release and assumption of risk forms.

Some courts have classified assumption of risk as:

• express or implied assumption of risk
• primary or secondary assumption of risk

Express assumption of risk occurs when someone signs a form expressly agreeing to assume the risks of an event. These forms are frequently used by charities, schools, fitness centers, and places of amusement or recreation. As one court observed:

Express assumption occurs when parties agree in advance that one of them is under no obligation to use reasonable care for the benefit of the other and will not be liable for what would otherwise be negligence. When such a plaintiff is injured by one of the risks for which he or she has agreed to forgo suit, the claim will be barred because that risk was assumed by the plaintiff. The bar of express assumption is based on contract and survives the enactment of comparative negligence statutes. However, such assumption only bars a claim with regard to the risks actually assumed by the plaintiff. Scott v. Pacific West Mountain Resort, 834 P.2d 6 (Wash. 1992).

In contrast, implied assumption of risk arises when someone is aware of a risk that already has been created by the negligence of another, yet chooses voluntarily to encounter it. In most jurisdictions, implied assumption of risk has been merged into the principle of comparative negligence, which requires a negligent defendant’s damages to be reduced by the plaintiff’s percentage of fault.

You may see the term “exculpatory clause” in a release agreement. The word exculpatory derives from the Latin “exculpate” meaning to free from guilt or blame.

Legal requirements for a valid release form

Many courts have noted that release forms are contracts, and as a result are governed by contract law. This means that a release form, to be legally enforceable, must satisfy the following elements of a valid contract:

1. Two or more contracting parties

A release form generally is a contractual agreement between an organization sponsoring an event and a participant.

2. Consideration

In the typical contract, one person (the “promisor”) makes a promise to do something for the benefit of another (the “promisee”), in return for which the promisee provides the promisor something of value. The value provided by the promisee to the promisor in exchange for the promisor’s promise is referred to as “consideration.” The requirement of consideration is what distinguishes legally enforceable promises (i.e., contracts) from unenforceable promises.

Example. X promises to sell his car to Y for $5,000. The consideration for X’s promise to sell his car is Y’s payment of $5,000.

Example. X promises to give his car to Y. Y provides nothing of value in return. This is a gift. Note that the requirement of consideration serves to distinguish those promises that will be legally enforceable with the full weight of the law, from those that are not. So, unless Y has done something in reliance on X’s promise, X’s promise is legally unenforceable.

Many release forms used by churches are legally unenforceable because the church provides nothing of value (consideration) in exchange for the promisor’s promise to release the church from liability. The same is true for many release forms used by schools and other youth-serving charities, recreational and amusement facilities, and employers.

How can this lack of consideration be corrected? How can church leaders ensure that this contractual requirement is met? Perhaps the simplest way is for the release form to declare that “in consideration of” the promisor being allowed to participate in a specified church activity, the promisor releases the church, its employees, volunteers, staff, and board, from liability for death or injury occurring during the activity. Here’s an excerpt from a release form used by a state university for nonstudent adults who participate in a specified activity:

In consideration of my participation in the Activity or Trip, I hereby accept all risk to my health and of my injury or death that may result from such participation and I hereby release the University, its governing board, officers, employees and representatives from any and all liability to me, my personal representatives, estate, heirs, next of kin, and assigns for any and all claims and causes of action for loss of or damage to my property and for any and all illness or injury to my person, including my death, that may result from or occur during my participation in the Activity or Trip, whether caused by negligence of the University, its governing board, officers, employees, or representatives, or otherwise. I further agree to indemnify and hold harmless the University and its governing board, officers, employees, and representatives from liability for the injury or death of any person(s) and damage to property that may result from my negligent or intentional act or omission while participating in the described Activity or Trip.

Note that this form satisfies the consideration requirement since it specifies that the promisor’s participation in the activity is the consideration provided by the University in exchange for the promisor’s promise to release it from liability.

But compare the following excerpt from a release form from a private college:

I also agree, for myself, my heirs and my personal representative(s) to release the College and its trustees, agents and employees, including student leaders of such activities, from any and all liability for damage to personal property, or for personal injury of any kind, including death, which may result from the inherent risks of my participation in the activity. I further waive any and all such claims, and agree to indemnify and hold the College and its trustees, agents, and employees, including student leaders of such activities, harmless from and against any and all claims that may be made against them as a result of injury to me or damage to my property.

This form is unenforceable since a promisor receives nothing of value in return for his or her promise to release the college from all liability for death or injury.

The courts generally do not evaluate the adequacy of consideration. In a famous British case, a court ruled that a “peppercorn” is sufficient. In a frequently cited case, New York’s highest court observed, “The slightest consideration is sufficient to support the most onerous obligation; the inadequacy . . . is for the parties to consider at the time of making the agreement, and not for the court when it is sought to be enforced. It is competent for the parties to make whatever contracts they may please, so long as there is no fraud or deception or infringement of law. Hence the fact that the bargain is a hard one will not deprive it of validity.” Mandel v. Liebman, 100 N.E.2d 149 (N.Y. 1951).

As a result, the courts will not evaluate whether allowing a person to participate in a specified church activity constitutes sufficient consideration for his or her promise to release the church from liability for injuries that may occur.

The lack of consideration renders any contract or promise unenforceable, as the following case studies illustrate.

Case study. A Tennessee court ruled that a church’s decision to make biweekly payments to a former pastor’s widow was unenforceable since the church received nothing of value (“consideration”) in return for its commitment, and therefore the church’s decision to discontinue making the payments did not amount to a breach of contract. Cochran v. Robinwood Lane Baptist Church, 2005 WL 3527627 (Tenn. App. 2005).

Case study. A Pennsylvania court addressed the issue of whether a church acted properly when it dissolved due to declining attendance, sold its assets, and transferred most of the sales proceeds to the pastor as compensation for wages that it was previously unable to pay. The court concluded that the pastor’s claim for compensation for his past service was unenforceable under contract law. It noted that contracts, to be enforceable, must be supported by consideration, meaning that both parties must receive something of value in exchange for their commitments. The court noted that the church’s commitment to pay the pastor $635,000 in back wages was unenforceable since “past services” are never valid consideration for current obligations and commitments. As a result, the court concluded that payment of additional sums to the pastor in excess of his specified salary would constitute a gift, which would be inconsistent with the charitable purposes of the church. First Church, 2011 WL 2302540 (Pa. Common. 2011).

3. An agreement that is sufficiently definite

The essential terms of a contract must be sufficiently definite to be understood by the parties. As one court noted, “The intent of the parties must be specifically stated in the four corners of the contract.” Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190 (Texas 2004).

4. Parties with legal capacity to make a contract

The parties to a contract must have the legal capacity to enter into the contract. This means that they have “sufficient mental capacity to understand the nature and effect of the particular transaction.” McElroy v. Mathews, 263 S.W.2d 1, 10 (Mo.1953).

It also means that they must not be under any “disability,” including being underage. In all states one must be 18 years of age or older to enter into a valid and enforceable contract. As noted below, this has direct relevance to the release forms often used by churches. Anyone under the age of 18 lacks contractual capacity, and cannot sign an enforceable release form. Whether parents can sign a release form that releases their minor child’s claims is a question that is addressed later in this article.

5. Mutual assent

The parties to a contract must both assent to the agreement. Mutual assent may be negated by a number of conditions, including fraud, mistake, undue influence, or duress. Consider these case studies.

Case study. A federal court in New York observed: “Under New York law, a party claiming that it was unduly influenced to enter a contractual relationship must prove that it contracted under circumstances indicating that a relationship of control existed and that the stronger of the two parties had exerted influence over the other to destroy the weaker party’s free will and substitute for it the will of the other. . . . The burden is heavy: A party seeking to invalidate a contract must demonstrate that it was manipulated into signing a contract as a consequence of conduct worse than pressure, no matter how bad, because undue influence is tantamount to a species of cheating.” Sun Forest Corp. v. Shvili, 152 F.Supp.2d 367 (S.D.N.Y. 2001).

Case study. “To rescind a contract because of unilateral mistake, therefore, the plaintiff must show ‘misrepresentation, concealment or nondisclosure of a material fact; an intent to deceive; and an injury resulting from justifiable reliance by the aggrieved party.’” Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40 (2d Cir.1991).

Case study. A misrepresentation can be the basis for a party’s avoidance of contractual obligations through rescission or reformation when the contract is based in material part on that misrepresentation. In order for this to occur, the recipient of the misrepresentation must show that (1) there was a misrepresentation that was (2) material or fraudulent and which (3) induced the recipient to enter into the agreement and that (4) the recipient’s reliance on the misrepresentation was justified. Christy v. Travelers Indemnity Company, 810 F.3d 1220 (10th Cir. 2016).

6. No legal prohibition precluding contract formation

Even if the technical requirements for a legally enforceable contract are met, a court may refuse to enforce an agreement on several grounds. This often happens when the civil courts review the validity of release forms and assumption of risk forms given the disdain with which they view attempts to avoid liability for injuries caused by the releasee’s negligence. The more common grounds for refusing to enforce otherwise valid contracts include the following.

Gross negligence or intentional acts

Several courts have ruled that release forms cannot release claims for injuries caused by the gross negligence or intentional acts of another. Note these case studies.

Case study. A woman (the “victim”) hired a guide for a family adventure in the Colorado Rockies that included an overnight rafting and camping excursion on a popular stretch of the Arkansas River running through Brown’s Canyon. After she arrived at the outfitter’s office, the victim and the other rafters received the usual guidance, made the usual preparations, and signed the usual release before heading down river. The next day, the raft capsized while maneuvering around a rapid. Everyone else was fished out of the water, but in a heartbreaking turn of events, the current swept the victim into a logjam where, despite repeated efforts to save her, she drowned. Eventually, her son brought a lawsuit against the rafting company alleging negligence. In reply, the company sought summary judgment, arguing that the release the victim signed shielded it from liability. With this the trial court agreed and proceeded to enter judgment for the company.

On appeal, a federal appeals court upheld the validity of the release form and the dismissal of the family’s claims on the basis of the release form the mother had signed. The appeals court noted that “no one before us doubts that [the victim] signed a release. Or that the release purported to absolve the rafting company from any claim of negligence. The only question in this appeal is whether the law permits private parties to enforce a contract like this. Under common law, it’s long settled that courts will not give effect to contracts purporting to release claims for intentional, knowing, or reckless misconduct. But claims of negligence are a different matter. The law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence.” Espinoza v. Arkansas Valley Adventures, LLC, 809 F.3d 1150 (10th Cir. 2015).

Case study. A developmentally disabled child attended a special summer camp for disabled children run by a city. Because she had frequent seizures, the child was assigned a counselor to monitor her closely. However, when her counselor momentarily turned her attention away from the child, who was at that time swimming toward the side of the pool, the child suffered a seizure and drowned. The city contended that a release signed by the child’s mother had absolved the city of liability for any negligence. On appeal, the California Supreme Court held that the family’s gross negligence claim was not barred by the release because an agreement purporting to protect the releasee from liability for conduct rising to the level of gross negligence is against public policy.

Church leaders should not assume that a release or assumption of risk form signed by a competent adult will apply to deaths or injuries caused by the gross negligence of the church or its agents. Distinguishing between ordinary negligence and gross negligence is often a difficult task, but this distinction is significant because it generally will determine the validity of a release or assumption of risk form. Note the following attempts to define gross negligence:

• “Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. . . . It is very great negligence, or the absence of slight diligence, or the want of even scant care. . . . Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence.”
• “The distinction between ‘ordinary and gross negligence’ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary. . . . Ordinary negligence—an unintentional tort—consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. Gross negligence long has been defined . . . as either a want of even scant care or an extreme departure from the ordinary standard of conduct. . . . A liability release, to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.” Jimenez v. 24 Hour Fitness, 188 Cal.Rptr3d 228 (Cal. App. 2015).
• “Negligence is defined as ‘any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for protection of others against unreasonable risk of harm.’ A claim for gross negligence, however, sets the evidentiary hurdle at a higher elevation: Gross negligence is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist. The distinction between negligence and gross negligence, however, can be a difficult one to establish in practice. . . .” Beall v. Holloway-Johnson, 130 A.3d 406 (Md. 2016).
• “We have viewed gross negligence as something more than simple negligence, and likely more akin to reckless conduct.” Id.
• How can a church be guilty of gross negligence? It is possible, depending on an examination of all the facts and circumstances, that the following practices could be grossly negligent:
• A church’s governing board refuses to institute a policy to reduce the risk of child molestation at church or during offsite church activities. The church uses a volunteer in its children’s ministry for whom no criminal records check or references were obtained. The volunteer sexually molests a child during a church activity. It is later discovered that the volunteer is a pedophile who molested children in a previous church.
• A church uses a van to transport children to an offsite activity. It selects a driver whose driving record was not examined. The driver’s negligence results in a collision that injures some of the children. It is later determined that he had a suspended driver’s license.
• A church board is aware that the youth pastor frequently sends and reads text messages on his cell phone while driving his car on church business. Nothing is done about it. The youth pastor swerves into the oncoming lane while texting his girlfriend and collides with another vehicle.
• The church youth group goes swimming at a lake. No life guards are present, and the church provides only two chaperones to oversee 50 minors. Neither chaperone is certified in CPR. One of the minors drowns, and no one is available to start CPR.

It is important for church leaders to be familiar with the concept of gross negligence for the following three reasons:

• Gross negligence is a bar to the enforcement of release and assumption of risk forms.
• Gross negligence is the same standard that is applied to the availability of “punitive damages.” Punitive damages are damages that a court can award to an injured person, over and above compensatory damages, based on the defendant’s gross negligence or willful and wanton conduct. It is important for church leaders to be aware of this, since punitive damages are not covered under church insurance policies due to the public policy of not allowing entities to insure against their gross negligence.
• Gross negligence negates the limited immunity from personal liability accorded to the uncompensated officers and directors of churches and other nonprofit organizations.

These potentially disastrous consequences make it imperative for church leaders to understand the concept of gross negligence, and to avoid any decisions that, in retrospect, may be grossly negligent.

Unequal bargaining power

Many courts have refused to enforce release forms that are the product of unequal bargaining power between the parties. City of Santa Barbara v. Superior Court, 62 Cal.Rptr.3d 527 (Cal. 2007). Consider these case studies.

Case study. A fitness club member sued the fitness club for injuries he sustained when a large mirror fell from a wall and struck him. The fitness club claimed that a release form signed by the victim when he joined the club prevented him from suing. An Illinois appeals court noted that “because liability release clauses are highly disfavored, courts closely scrutinize them and they are strictly construed against the party seeking to rely on them.” However, “absent fraud or willful and wanton negligence, a contract’s exculpatory clause will be valid and enforceable unless (1) the bargaining position of the parties reflects a substantial disparity, (2) enforcement violates public policy, or (3) the social relationship between the parties militates against upholding the clause. Absent any of these factors, the question of whether or not an exculpatory clause will be enforced depends upon whether or not defendant’s conduct and the risk of injury inherent in said conduct was of a type intended by the parties to fall within the scope of the clause.” Hawkins v. Capital Fitness, 29 N.E.3d 442 (Ill. App. 2015).

Case study. A North Carolina court concluded: “Contracts which exculpate persons from liability for negligence are not favored, and must be strictly construed against the person seeking to escape liability. . . . An exculpatory contract that has been gained through inequality of bargaining power is unenforceable. In applying this exception to the general rule allowing the enforcement of otherwise-enforceable exculpatory clauses, reviewing courts give consideration to the comparable positions which the contracting parties occupy in regard to their bargaining strength, i.e., whether one of the parties has unequal bargaining power so that he must either accept what is offered or forego the advantages of the contractual relation in a situation where it is necessary for him to enter into the contract to obtain something of importance to him which for all practical purposes is not obtainable elsewhere.” The fact that a party could obtain the same or similar services from other vendors is a key factor in demonstrating equal bargaining power. Hyatt v. Mini Storage on Green, 763 S.E.2d 166 (N.C. App. 2014).

Public policy

Many courts have ruled that to be legally enforceable a release must not violate public policy. Some have concluded that any attempt to avoid the consequences of one’s negligence by utilizing release forms is a violation of public policy. This view is nearly universal in cases involving attempts to have minors release a church or other entity from liability for its negligence. But some courts interpret “public policy” more broadly and refuse to enforce release forms signed by competent adults. The use of release forms to release a church or other entity from liability for its negligence in cases involving injuries to minors is addressed later in this article.

Case study. “All contracts are subject to judicial scrutiny to determine their enforceability. Here, defendant seeks to shield itself from all civil liability, based on a one-sided contractual arrangement that offers no countervailing or redeeming societal value. Such a contract must be declared unenforceable as against public policy.” Walters v. YMCA, 96 A.3d 323 (N.J. App. 2014).

Unconscionability

Some courts have refused to enforce release forms on the basis of unconscionability. A contract or clause is unconscionable when there is an “absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” 8 Williston, A Treatise on the Law of Contracts § 18:9.

Many courts have distinguished between “procedural” and “substantive” unconscionability. Procedural unconscionability may arise when a party lacks a meaningful choice. Determination of whether a contract is procedurally unconscionable includes an inquiry into “the manner in which the contract was entered, whether each party had a reasonable opportunity to understand the terms of the contract, and whether the important terms were hidden in a maze of fine print.” Schroeder v. Fageol Motors, Inc., 544 P.2d 20 (Wash. 1975).

Agreements that are “adhesion contracts” may be unconscionable. An adhesion contract is usually “(1) a standard form agreement, (2) prepared by one party and submitted to another party on a ‘take it or leave it’ basis, (3) when the bargaining power between the parties was not truly equal.” Eelbode v. Chec Medical Centers, 984 P.2d 436 (Wash. 1999).

That an agreement constitutes a contract of adhesion ordinarily is insufficient to support a finding that the agreement is procedurally unconscionable. Additional factors that tend to demonstrate procedural unconscionability include:

• the length and complexity of the written agreement;
• the use of fine print to “conceal” the fact that the releasor is releasing the other party from liability; and
• a failure to emphasize language of release through bold and larger font text.

Note. “Substantive unconscionability” involves the use of a clause or term in a contract that is one-sided or overly harsh. “Shocking to the conscience,” “monstrously harsh,” and “exceedingly calloused” are terms sometimes used to define substantive unconscionability.

Consider these case studies.

Case study. “A release of prospective negligence may be valid. Such a release must be clear and unequivocal to insulate a party from liability. . . . It must also not be unconscionable. Unconscionability is a concept that is used sparingly. Traditionally, an unconscionable contract is one which no man in his senses and not under delusion would make on the one hand, and as no honest or fair man would accept, on the other. But mere disparity between the bargaining powers of parties to a contract will not support a finding of unconscionability. There must be an absence of meaningful choice and contract terms unreasonably favorable to one of the parties. There is no deprivation of meaningful choice if a party can walk away from the contract.” Ketler v. PFPA, 2016 WL 192599 (Del. 2016).

Case study. “It has been suggested that an unconscionable contract is one such as no man in his senses and not under a delusion would make on the one hand, and as no honest or fair man would accept, on the other. . . . The inequality . . . must be so strong and manifest as to shock the conscience and confound the judgment of any man of common sense.” Hughes v. Hughes, 16 N.Y.S.3d 861 (N.Y. App. 2015)

Ambiguity

Many courts have refused to enforce release forms that contain ambiguities. Consider the following case study.

Case study. A federal district court in Connecticut awarded $42 million in damages to a minor who contracted tick-borne encephalitis (TBE) on a school-sponsored month-long trip to China. The victim sustained permanent brain damage as a result of a tick bite, and the court concluded that the injury was due to the school’s negligence.

The court disregarded a release signed by the victim’s parents. It noted that the courts “disfavor broad waivers of negligence liability” and that “unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts.” A party “cannot shed his ordinary responsibility in the absence of language that expressly provides so.”

When evaluating a release or waiver, “the question is whether an ordinary person of reasonable intelligence would understand that, by signing the agreement, he or she was releasing the defendants from liability for their future negligence. . . . In general a waiver should refer to negligence, or some close synonym, in order to clearly communicate its message. That is why the [Connecticut Supreme Court] held an exculpatory clause that explicitly used the word ‘negligence’ several times to be sufficiently clear, while it refused to enforce a release that only referred to risks involved in an activity, but which made no reference to the possible negligence of the defendant.” Citing Lewis v. Habitat for Humanity, 2012 WL 386391 (Conn. 2012). The court concluded:

In this case, an average person would not have understood the release to absolve the school of liability for its careless acts. The portion of the waiver that lays out the release’s general scope never references the school’s basic responsibility to use reasonable precautions, and the exception to the waiver appears to carve out negligent or willful conduct by the school from the scope of the waiver.

The general scope is, of course, written quite broadly; it covers “any and all claims” and “acts or omissions of any persons,” and waives “responsibility for” not just “any accident, illness, injury,” but also “any other damage.” But that broad language uses common words to describe breach (“an act or omission”) and harm (“accident, illness, injury”), and never refers to a standard of care (by using a word like “negligence”). An ordinary person might interpret the release to shield the school from most litigation, but would not know that the school intended to eschew the most basic duty each of us has to others—the duty to act with reasonable care, or, when referred to in the negative, not being negligent. This ambiguity is underscored by the clarity with which the release refers to the standard of care taken by others: it waives “any liability, damage, or injury that may be caused by Student’s negligence” and “any liability, damage, or injury caused by the intentional or negligent acts or omissions of any other participant in the Program” (bold added for emphasis). Thus, the release speaks with clarity about the “negligence” of everyone but the school. Indeed, the natural reading of the waiver does not suggest that students are waiving the chance to proceed against the school in the event that Hotchkiss acts carelessly. Just the opposite—in the long, bullet-pointed list of things that could go wrong, it never once mentions that the school itself might be the one to make a mistake.

Because the portion of the release that delineates its basic scope does not appear to waive the school’s liability for its negligence . . . the release is not enforceable in this case. Munn v. Hotchkiss School, 933 F.Supp.2d 343 (D. Conn. 2013).

Why release forms are disfavored

Many courts have noted that attempts to avoid the consequences of one’s negligence through release forms, assumption of risk forms, and exculpatory clauses, are highly disfavored. As a result, the courts will invalidate any form of liability release that fails to strictly comply with the legal requirements for an enforceable release (summarized above).

The low regard the courts have for liability releases is based on two considerations. First, as noted above, allowing a church or other entity to avoid liability for deaths and injuries caused by its negligence is inappropriate, especially if there is a disparity in bargaining power. Second, many courts have noted that the use of release forms makes organizations less vigilant in assessing and managing risks. As one court noted: “The law does not favor exculpatory agreements because they encourage a lack of care.” Walters v. YMCA 96 A.3d 323 (N.J. App. 2014).

Minors

Church leaders often assume that minors can sign release forms that purport to release the church from injuries caused by the negligence of the church and its agents, or, that parents can sign such forms on behalf of their minor children. These perceptions ordinarily are false, since in all states minors (persons under the age of 18) have no “contractual capacity” and therefore cannot sign enforceable liability releases, and in most states parents cannot release the legal claims of their minor children.

Consider the following case studies.

Case study. A Colorado court ruled that a release form signed by a parent whose minor daughter attended an offsite church activity did not relieve the church from liability for catastrophic injuries sustained by the daughter during the activity. A group of 60 teenagers attended a three-day church retreat at a ranch. All of the participants were required to submit a registration form, signed by at least one parent, that contained the following release of liability provision:

I give permission for my child to participate in [the event] and all activities associated with it. I further give consent for any medical treatment necessary to be given to my child in case of injury or sickness. I will not hold [the church] or its participants responsible for any liability which may result from participation. I also agree to come and pick up my child should they not obey camp rules.

After arriving and checking in at the ranch, the participants engaged in church-sponsored activities. One activity was riding an inner tube tied to an all-terrain vehicle (ATV) driven around a frozen lake. A large boulder was embedded in the lake some 35 feet from shore. Two adult leaders drove the ATV towing youth participants around the frozen lake. A 17-year-old girl (the “victim”) got on an inner tube, and the ATV began towing her. On her second loop around the lake, the ATV went between the boulder and shoreline. The victim’s inner tube, still tied to the ATV, veered off and crashed into the boulder. The crash broke the victim’s back, resulting in permanent injuries.

The victim sued the church, claiming that its negligence resulted in the accident. The church asserted that the release form, signed by the victim’s mother, precluded it from any liability for the victim’s injuries. The jury returned verdicts against the church totaling more than $4 million. The court reduced the total to $2 million (the limits of the church’s insurance). With prejudgment interest and costs, the final judgment was $2.6 million. The church appealed.

The appeals court noted that the state legislature had enacted a statute allowing parents to “release or waive a child’s prospective claim for negligence.” The legislature concluded that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities. It added that “so long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education.” But it further provided that the statute does not permit a parent to waive a child’s prospective claim for “willful and wanton, reckless, or grossly negligent” acts or omissions.

The court concluded that the release signed by the victim’s mother in this case was not an “informed” decision as required by the statute permitting parents to release their minor children’s claims. It observed:

There is no information in the registration form describing the event activities, much less their associated risks. Stating that the children would ‘participate in [the event] and all activities associated with it’ does not indicate what the activities would involve and certainly does not suggest they would include ATV-towed inner-tube excursions around a frozen lake.

The court stressed that release clauses “must be closely scrutinized” because they are “disfavored.” A release “need not contain any magic words to be valid; in particular, it need not specifically refer to waiver of negligence claims.” But, “in every Colorado Supreme Court case upholding an exculpatory clause, the clause contained some reference to waiving personal injury claims based on the activity being engaged in.” The release clause in this case did not satisfy this requirement, and therefore was not enforceable. Wycoff v. Community Church, 251 P.3d 1260 (Colo. App. 2010)

Case study. In 2005, a 14-year-old female (the “victim”) attended a field trip with Classic Upward Bound, a youth outreach program organized by the University of Northern Iowa and the State of Iowa. On the field trip, the victim was injured when she was struck by a car as she attempted to cross a street. Before she went on the field trip, the victim’s mother signed two documents titled “Field Trip Permission Form” and “Release and Medical Authorization.” The first document read, in part:

Field Trip Permission Form

Each summer the participants of the Classic Upward Bound Program attend field trips locally and out-of-town. This form must be completed in order for your son/daughter to participate in said events.

As the parent/guardian of [the victim] I hereby give my permission for him/her to participate in ALL field trips sponsored by the University of Northern Iowa Classic Upward Bound Program during the Summer Residential and the Academic Year Program. [He/she] understands he/she is to follow all rules of the Classic Upward Bound Program while participating in these field trips.

Furthermore, I will not hold the University of Northern Iowa or any of its employees or agents responsible for any accidents, losses, damages or injuries resulting from the son/daughter’s participation in any or all the field trips. I also release the Classic Upward Bound Program, the University of Northern Iowa, and its employees and agents from all liabilities.

The victim’s mother signed and dated the form, and also signed another form which read, in part:

Release and Medical Authorization

Read Carefully –

This document is a release and authorizes medical treatment.

In consideration of the University of Northern Iowa granting the student permission to participate in the Classic Upward Bound Program, I hereby assume all risks of her/his injury (including death) that may result from any program activity. As parent/guardian I do hereby release and agree to indemnify, defend and hold harmless the University of Northern Iowa, State Board of Regents, State of Iowa, Classic Upward Bound and its officers, employees, agents and all participants in the program from and against all liability including claims and suits of law or in equity for injury (fatal or otherwise) which may result from any negligence and/or the student taking part in program activities.

I certify that within the past year the student has had a physical examination and that she/he is physically able to participate in all Upward Bound activities.

In the event of injury or illness, I hereby give my consent for medical treatment, and permission to program staff for supervising and performing, as deemed necessary by staff, on-site first aid for minor injuries, and for a licensed physician to hospitalize and secure proper treatment (including injections, anesthesia, surgery, or other reasonable and necessary procedures) for the student. I agree to assume all [costs] related to any such treatment. I also authorize the disclosure of medical information to my insurance company for the purpose of this claim. I understand each student must provide her/his own medical insurance.

I understand that I am responsible for any medical or other charges related to the student’s attendance at the University of Northern Iowa Classic Upward Bound Program.

The victim’s mother sued the State of Iowa and the university (the “defendants”). The defendants asked the court to dismiss the lawsuit on the ground that the mother waived any claims for negligence. A trial court ruled that the release form constituted a valid waiver of the mother’s claims. The mother appealed.

On appeal, the Iowa Supreme Court ruled that public policy prevented parents from releasing the legal claims of their minor children: “Like a clear majority of other courts deciding such releases are unenforceable, we believe the strong policy in favor of protecting children must trump any competing interest of parents and tortfeasors in their freedom to contractually nullify a minor child’s personal injury claim before an injury occurs.” The defendants asserted that if parental waivers are rendered unenforceable, then “recreational, cultural, and educational opportunities for youths will cease because organizations sponsoring them will be unable or unwilling to purchase insurance or otherwise endure the risks of civil liability.” But the court disagreed: “We believe the fear of dire consequences from our adoption of the majority rule is speculative and overstated. We find no reason to believe opportunities for recreational, cultural, and educational activities for youths have been significantly compromised in the many jurisdictions following the majority rule. In the final analysis, we conclude the strong public policy favoring the protection of children’s legal rights must prevail over speculative fears about their continuing access to activities.” Galloway v. State, 790 N.W.2d 252 (Iowa 2010).

Case study. A New York court ruled that a release form signed by a high school student and his parents did not relieve a church-operated school from liability for injuries sustained by the student when he was sexually assaulted by other students while on a school-sponsored trip to Europe. The court concluded that the release form was “unenforceable because it does not clearly and unequivocally express the intention of the parties to relieve the [defendants] from liability for injuries sustained as the result of their negligence.” John Doe v. Archbishop Stepinac High School, 729 N.Y.S.2d 538 (2001).

Case study. A 5-year-old boy had his birthday party at a commercial facility with an indoor play area that contained inflatable play equipment. Before the party, the boy’s father signed a liability waiver on his son’s behalf. The waiver provided in pertinent part:

THE UNDERSIGNED, by his/her signature herein affixed does acknowledge that any physical activities involve some element of personal risk and that, accordingly, in consideration for the undersigned waiving his/her claim against BOUNCE PARTY, and their agents, the undersigned will be allowed to participate in any of the physical activities.

By engaging in this activity, the undersigned acknowledges that he/she assumes the element of inherent risk, in consideration for being allowed to engage in the activity, agrees to indemnify and hold BOUNCE PARTY, and their agents, harmless from any liability for personal injury, property damage or wrongful death caused by participation in this activity. Further, the undersigned agrees to indemnify and hold BOUNCE PARTY, and their agents, harmless from any and all costs incurred including, but not limited to, actual attorney’s fees that BOUNCE PARTY, and their agents, may suffer by an action or claim brought against it by anyone as a result of the undersigned’s use of such facility.

During the party, the boy jumped off a slide and broke his leg. The boy’s mother sued the facility (the “defendant”) alleging negligence. The defendant asked the court to dismiss the case on the ground that the boy’s claims were waived by the release form signed by the father. The trial court ruled that the waiver barred the child’s negligence claim. A state appeals court held that the waiver was invalid to bar the negligence claim, and the case was appealed to the Michigan Supreme Court, which ruled that a preinjury release signed by a parent does not bar a child’s claims. The court observed:

A parental preinjury waiver is a contract. [The father] purportedly signed the contract on behalf of his son. Consequently, defendant necessarily asserts that the contract is enforceable against [the child] because [his father] had authority to bind his son to the contract. The well-established common law rule is that a minor lacks the capacity to contract. It is undisputed that if the five-year-old child had signed the waiver, the defendant could not enforce the waiver against him unless he confirmed it after he reached the age of majority.

At issue is whether a minor can be bound by a contract signed on his behalf by a third party. Specifically, can a parent bind his child by contract if the child could not otherwise be bound? Defendant insists that, under the common law, a parental waiver is enforceable to bar the claim of a minor child. However, the Michigan common law rule is clear: a guardian, including a parent, cannot contractually bind his minor ward. . . . The application of the common law in this case is simple and straightforward. The waiver at issue is a contractual release. [The father] signed the waiver on behalf of his son, thereby intending to bind [the child] to that contract. Under the common law, he was without authority to do so. Accordingly, the waiver is not enforceable against [the child] and does not bar his cause of action. Woodman v. Kera LLC, 486 Mich. 228 (Mi. 2010)

A few courts have reached the opposite conclusion, and have allowed parents to execute preinjury releases on behalf of their minor children. But note:

• These cases represent a minority view that has been recognized in only a few states.
• Many of these cases are older, and are of dubious precedential effect today.
• Some of these cases are based on state laws that empower parents to sign preinjury releases on behalf of their minor children only in specific circumstances, such as equine events or skiing, and up to specified limits. These laws are subject to change.

Conclusion

While the courts loathe attempts to avoid the consequences of one’s negligence through release forms and assumption of risk forms, and will scrutinize such forms for any basis to avoid them, many will enforce them if several conditions are met.

For more information on the subject of release forms, see the partner article “A 16-Point Evaluation.”

State Statutes Allowing Parents to Sign Preinjury Releases on Behalf of Their Minor Children
Note: Do not rely on information in this table without first consulting with legal counsel.

State	Statute	Text of Statute
Alaska	AK Stat. 09.65.292	(a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent. (b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.
AK Stat. 05.45.120	A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.
Arizona	AZ Stat. 12-553	A. An equine owner or an agent of an equine owner who regardless of consideration allows another person to take control of an equine is not liable for an injury to or the death of the person if … the person or the parent or legal guardian of the person if the person is under eighteen years of age has signed a release before taking control of the equine. B. Subsection A does not apply to an equine owner or agent of the equine owner who is grossly negligent or commits willful, wanton or intentional acts or omissions.
Colorado	CO Stat. 13-22-107	A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence. Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.
Florida	FL Stat. 744.301(3)	Nothing in this subsection limits the ability of natural guardians [includes parents] on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.
Virginia	VA Stat. 3.2-6202	No participant or parent or guardian of a participant who has knowingly executed a waiver of his rights to sue or agrees to assume all risks specifically enumerated under this subsection may maintain an action against or recover from an equine activity sponsor or an equine professional for an injury to or the death of a participant engaged in an equine activity. The waiver shall give notice to the participant of the intrinsic dangers of equine activities. The waiver shall remain valid unless expressly revoked in writing by the participant or parent or guardian of a minor.