Churches should not allow a minor child to participate in any church activity (such as camping, boating, swimming, hiking, or some sporting events) unless the child’s parents or legal guardians sign a form that (1) consents to their child participating in the specified activity; (2) certifies that the child is able to participate in the event (e.g., if the activity involves boating or swimming, the parents or guardians should certify that the child is able to swim); (3) lists any allergies or medical conditions that may be relevant to a physician in the event of an emergency; (4) lists any activities that the parents or guardians do not want the child to engage in; and (5) authorizes a designated individual to make emergency medical decisions for their child in the event that they cannot be reached.
Ideally, the form should be signed by both parents or guardians (if there are two), and the signatures should be notarized. If only one parent or guardian signs, or the signatures are not notarized, the legal effectiveness of the form is diminished. Having persons sign as witnesses to a parent’s signature is not as good as a notary’s acknowledgment, but it is better than a signature without a witness. The form should require the parent or guardian to inform the church immediately of any change in the information presented, and it should state that it is valid until revoked by the person who signed it. The parent or guardian should sign both in his or her own capacity as parent or guardian, and in a representative capacity on behalf of the minor child.
A New Jersey court ruled that a fitness club member who was injured when she fell off a piece of exercise equipment was not barred from suing the club as a result of a release form that she signed, since the form was not legally enforceable. A woman (the “plaintiff”) joined a fitness club. In addition to signing a membership agreement, she signed a “waiver and release” form that stated, in part:
WAIVER & RELEASE FORM
Because physical exercise can be strenuous and subject to risk of serious injury, the club urges you to obtain a physical examination from a doctor before using any exercise equipment or participating in any exercise activity. You (each member, guest, and all participating family members) agree that if you engage in any physical exercise or activity, or use any club amenity on the premises or off premises including any sponsored club event, you do so entirely at your own risk …. You agree that you are voluntarily participating in these activities and use of these facilities and premises and assume all risks of injury, illness, or death. We are also not responsible for any loss of your personal property.
This waiver and release of liability includes, without limitation, all injuries which may occur as a result of, (a) your use of all amenities and equipment in the facility and your participation in any activity, class, program, personal training or instruction, (b) the sudden and unforeseen malfunctioning of any equipment, (c) our instruction, training, supervision, or dietary recommendations, and (d) your slipping and/or falling while in the club, or on the club premises, including adjacent sidewalks and parking areas.
You acknowledge that you have carefully read this “waiver and release” and fully understand that it is a release of liability. You expressly agree to release and discharge the health club, and all affiliates, employees, agents, representatives, successors, or assigns, from any and all claims or causes of action and you agree to voluntarily give up or waive any right that you may otherwise have to bring a legal action against the club for personal injury or property damage.
To the extent that statute or case law does not prohibit releases for negligence, this release is also for negligence on the part of the Club, its agent, and employees ….
By signing this release, I acknowledge that I understand its content and that this release cannot be modified orally.
One of the exercise rooms at the club is equipped with several stationary bicycles. The bicycles are regularly used in what are commonly known as “spinning classes,” in which a fitness instructor in front of the room leads participants in a simulated ride. The instructor periodically issues verbal commands to the riders to change their position on the bike or to adjust the tension on the spinning wheel.
The plaintiff arrived at the club at approximately 8:30 a.m. After enrolling as a member of the club for a monthly fee of $149.00 and signing the necessary paperwork, she informed the instructor that she had never had a class like this before. The instructor strapped the plaintiff’s feet into the bike and adjusted the seat. The instructor then advised the plaintiff to watch her during the class.
As the spinning class began, the plaintiff started pedaling in a seated position. Shortly thereafter, the instructor apparently told the class to assume a standing position. Then, as the plaintiff later testified: “The handle bars to the spin bike came off the bike while I was spinning on the bike. I fell forward and onto the floor of the gym while my feet were still strapped into the pedals of the bike.” The plaintiff suffered injuries to her neck and lower back in the spinning accident. She reported persisting pain, numbness and tingling, even three years after her fall.
The plaintiff sued the fitness club, as well as the manufacturer of the exercise bike, claiming that their negligence caused her injuries. The club claimed that by signing the waiver agreement, the plaintiff waived any right to sue for personal injuries arising out of her accident on the spinning bike.
The plaintiff disagreed. She maintained that she “did not really read” the waiver agreement before she signed it. She insisted that “the person giving me the papers to fill out and sign most certainly did not verbally tell me that I was signing a release form.” At her deposition, the plaintiff asserted that “they gave me a bunch of papers, and I signed them,” denying that she understood at the time what they signified. She also claimed that the waiver agreement was an “adhesion” contract that was unenforceable.
A trial court dismissed the plaintiff’s claims on the ground that the waiver agreement that she signed was “unambiguous and enforceable.” The trial judge found inconsequential the plaintiff’s claim that she did not read or understand the agreement when it was presented to her for signature as her membership was processed.
A state appeals court affirmed the trial court’s dismissal of the case.
The court defined a contract of adhesion as follows: “The essential nature of a contract of adhesion is that it is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars. More succinctly, a contract of adhesion is an instrument that one party ‘must accept or reject as is.'”
The court concluded that the fitness club’s waiver agreement was a contract of adhesion, since patrons who declined to sign it would not be permitted to use the facility. However, the court clarified that “not all contracts of adhesion are unenforceable.” Only those that are “unconscionable” are adhesive. The court concluded that the fitness club’s waiver agreement was not unconscionable:
We reject plaintiff’s contention that the formation of the agreement was unconscionable. We do not regard this as a scenario of manifestly unequal bargaining power. Plaintiff could have walked away and taken her membership business to a rival fitness center, perhaps one that did not require an onerous exculpatory waiver. She also could have found other venues to exercise, such as working out at home or outdoors. She could have gone to a public park or recreation facility in lieu of a private gym. The club apparently did not put plaintiff under time pressure to review or sign the agreement. Nothing indicates that she was prevented from leaving the premises and thinking over whether or not to join, or taking the unsigned waiver form to a legal adviser.
The court acknowledged that “the law does not favor exculpatory agreements because they encourage a lack of care,” and that courts “closely scrutinize liability releases and invalidate them if they violate public policy.” One way that a waiver form may violate public policy is by attempting to avoid liability for conduct that “rises to a degree of fault beyond ordinary negligence, such as “intentional or willful acts or gross negligence.” A release form “should not insulate dangerous conduct that is more culpable than ordinary negligence or carelessness …. If [the fitness club] so sharply deviated from the ordinary standards of reasonable care, public policy dictates that the exculpatory agreement should not protect it from liability. We further conclude that it would be substantively unconscionable for a disclaimer to insulate a health club from the harm caused by such egregious behavior.”
The court noted that the club’s waiver agreement “anticipated the prospect that a court might find its disclaimers from liability unenforceable, at least in part.” The agreement “says nothing about conduct more egregious than ordinary negligence, such as recklessness or palpably unreasonable conduct.” The court concluded that “the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.” Stelluti v. Casapenn Enterprises, LLC, 975 A.2d 494 (N.J. 2009).
A release form is a document signed by a competent adult that purports to relieve a church from liability for its negligence. 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 will not be enforced if they are ambiguous.
(3) 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.
(4) 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.
(5) Some courts refuse to enforce release forms that attempt to avoid liability for intentional acts, gross negligence, or willful or wanton conduct. If a release form does not explicitly exclude such conduct from its terms, the form may be invalidated by a court.
(6) Release forms will not be enforced unless they clearly communicate that they are releasing the church from liability for its negligence.
(7) Some courts refuse to enforce release forms if they are “contracts of adhesion” based on a gross disparity in bargaining power between the releasor and releasee. To illustrate, if the person signing a release form has no ability to change it, this may suggest an unenforceable adhesion contract. On the other hand, some courts have ruled that a release form is not an unenforceable contract of adhesion if the party signing the form could walk away from the transaction and do business elsewhere. This exception may or may not apply to a church, depending on the circumstances. After all, is it realistic to say that a church member has the right to walk away and attend another church, and therefore a release form is not a contract of adhesion?
(8) Some courts refuse to enforce a release form that is inconspicuous. To illustrate, if the language of release is buried in another, larger document, without a bold heading and other devices to draw attention to it, it may be unenforceable.
(9) Some courts have ruled that release forms that do not contain a signature by the releasor are unenforceable. To illustrate, if the language of release is contained in a larger document, a signature line should appear directly after the language of release as well as at the end of the document.
Besides being of dubious legal value, release forms primarily protect the church’s insurance company. If injuries are caused by the negligence of a church worker, then the liability insurer will pay for such damages up to the policy limits. If the church is not negligent, then it ordinarily will not be assessed any damages. A release form, even if deemed legally valid by a court, would have the effect of excusing the church’s liability insurer from paying damages to a victim of the church’s negligence.
Churches should not use releases without discussing them with their insurance agent and a local attorney.
Tip. Churches that send groups of adults to other locations for short-term missions projects should consider having each participating adult sign an assumption of risk form. So long as these forms clearly explain the risks involved, and leave no doubt that the signer is assuming all risks associated with the trip, they may be enforced by the courts. This assumes that the signer is a competent adult. Churches should consult with an attorney about the validity of such forms under state law.
This Recent Development first appeared in Church Law & Tax Report, July/August 2010.