• Key point. “Release forms” signed by competent adults will be recognized by the courts in some states, and will prevent one who signs such a form from suing specified persons or organizations for negligence.
A Texas appeals court ruled that the family of an adult student at a scuba diving school who died as a result of injuries sustained during diving lessons was prevented from suing the school as a result of a release and assumption of risk that she signed. Prior to participating in diving lessons the victim had to sign a release and assumption of risk form that provided in part:
I hereby affirm that I have been well advised and thoroughly informed of the inherent hazards of scuba diving. Further, I understand that diving with compressed air involves certain risks …. I hereby personally assume all risk in connection with said course for any harm, injury or damages that may befall me as a result of my participation in the course, whether foreseen or unforeseen, and I still wish to proceed with the course …. I understand and agree that [the diving school shall not] be held liable in any way for any occurrence with this diving class that may result in injury, death, or any other damages to me or my family, heirs, or assigns, and in consideration of being allowed to enroll in the course I hereby personally assume all risks in connection with said course, for any harm, injury or damage that may befall me while I am enrolled as a student of the course …. I understand that the terms herein are contractual and not a mere recital; and that I have signed this document as my own free act. It is [my] intention by this instrument to exempt and release [the diving school] from all liability whatsoever for personal injury, property damage or wrongful death caused by negligence.
I have fully informed myself of the contents of this affirmation and release by reading it before I signed it.
A trial court ruled that this release and “assumption of risk” form relieved the diving school of any liability for the victim’s death as a result of its negligence. A state appeals court agreed. It noted that under Texas law “assumption of risk remains viable only in cases involving a knowing and express oral or written consent to the dangerous activity or condition.” These requirements were satisfied in this case, the court concluded. The court emphasized that releases and assumption of risk forms are not favored and are narrowly construed, and must specifically mention the kinds of risks that are being assumed and the types of liability that are being released. The release and assumption of risk form signed by the victim in this case passed these tests, the court ruled. It noted that “it would be difficult to imagine language more clearly designed to put a layman on notice of the legal significance and effect.” The court left unanswered the question of whether a person can assume the risks of another’s “gross negligence.” It noted that such an assumption of risk might be invalid on the basis of public policy. The court defined “gross negligence” as conduct that manifests such a lack of care “as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected.”
What is the significance of this case to churches? It illustrates that release and assumption of risk forms are disfavored by the courts and will be narrowly construed. Such forms should not be viewed as a solution to legal risks. The courts will avoid such agreements whenever possible, often in unexpected ways. As this case illustrates, they may be invalidated on the basis of public policy if they attempt to relieve an organization of liability for its “gross negligence.” Such forms should not be relied upon, and certainly should not be viewed as a substitute for sound risk management. Churches should never use release or assumption of risk agreements that are not prepared or reviewed by legal counsel. Newman v. Tropical Visions, Inc., 891 S.W.2d 713 (Tex. App.—San Antonio 1994). [ Negligence as a Basis for Liability—Defenses]
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