Key point 10-16.6. 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’ signatures do not prevent minors from bringing their own personal injury claims 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.
A Kentucky court ruled that a minor who was injured while participating in a church’s summer camp program was not barred from suing the church by a release form signed by her mother.
A 16-year-old girl (the “victim”) attended a church and was a member of the church youth group. The youth group was planning a five-day summer camp, and in advance of the camp, it sent information packets to parents that included a “medical permission and release form” that asked for the minor participant’s name and address, the guardian’s name and phone number, as well as information regarding immunizations, allergies, any medications taken by the participant, and childhood diseases. On the same form, in a clause titled “Permission For Medical Treatment, Photography/Video Notice, and Release and Indemnity,” the form states:
My permission is granted for the camp or event director, church official, any camp or event staffer, or adult present or in charge of First Aid, to obtain necessary medical attention in case of sickness or injury to my child. Also, I understand that as a participant, my child may be photographed or videotaped during normal camp or event activities and these photos/videos may be used in promotional materials.
I, the undersigned, do hereby verify that the above information is correct and I do hereby release and forever discharge [the church], camp or event sponsors, or state conventions and their employees from any and all claims, demands, actions, or causes of actions, past, present, or future arising out of any damage or injury while employed by or participating in this camp or event. I agree to indemnify [the church] from any and all claims, demands, damages, injuries, cost, suits or causes of action, past, present, or future arising out of or caused by my child while participating in this camp or event or while on property leased or owned by [the church].
The victim’s mother completed and signed the forms.
The youth group departed the church on July 9, 2007, and, upon arriving at a nearby college, were assigned dorm rooms. Three female youth-group members were assigned to a room across the hall from the victim. On July 10, 2007, a group of five girls received permission to return to their dorm rooms to change clothes before the afternoon session. No chaperones accompanied the girls.
The victim claimed that she went to her room and then proceeded to the room across the hall and entered in order to ask whether the girls needed to take their Bibles to the worship center. Upon entering, she was told to leave but proceeded inside. Once inside, she was again told to leave and then one of the other girls hit her nose. The victim returned to her room, observed blood coming from her nose and called her mother. Chaperones who examined her face and nose did not see any signs of injury.
Later that evening, the victim’s mother drove the victim to a hospital where she was x-rayed and offered pain medication. Several days later, after the pain did not subside, she was seen by her family physician, who referred her to an ear, nose, and throat specialist. In December 2007, she underwent nose surgery.
Upon turning 18, the victim sued the church, claiming that it negligently failed to supervise the youth group during the camp and failed to have proper access to medical care. She alleged she suffered severe physical injuries, emotional distress, lost wages, and destruction of her power to work and earn money. She also sought punitive damages.
The church asked the court to dismiss the case on the ground that the release was valid and enforceable under Kentucky law. It argued that the release was clear and unambiguous, that the family was not compelled to execute it, and that public policy favored protecting charitable organizations. The victim countered that the release was “buried” in language permitting medical treatment and did not release the church for its own negligence and that the mother was not in an equal position when signing the forms. The trial court granted summary judgment in favor of the church, and the victim appealed.
A state appeals court ruled that the release form signed by the mother was unenforceable. It observed:
Although releases for exemption from future liability for negligence are not invalid per se, such contracts are disfavored and are strictly construed against the parties relying upon them … . Because the law disfavors such contractual provisions, the wording of the release must be so clear and understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable.
The court concluded that the release signed by the mother was unenforceable for the following reasons:
- The release did not mention “negligence.”
- The release did not explicitly release the church from liability for personal injuries caused by its own conduct.
- The release could reasonably be construed to only release the church from vicarious liability in connection with any medical treatment rather than for its own conduct. Such a construction “was particularly reasonable where, as here, the language relied upon by the church was included within the medical permission form and ‘buried’ in small print within that provision.”
- There was no specificity in the release “regarding the type of harm contemplated by the release, and, in fact, it was broadly written to purport to cover all claims, past and future, from whatever source or of whatever nature.”
What this means for churches
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:
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 in most states their parents’ signatures do not prevent minors from bringing their own personal injury claims 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 if the release language is inconspicuous. To illustrate, if the language of release is buried in another, larger document, without a bold heading, larger font, and other features 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.
Churches should not use releases without legal counsel. Grego v. Jenkins, 2017 WL 127729 (Ky. App. 2017).
TIP. Churches that send groups of adults on 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. Also, see “Parental Permission and Medical Consent Forms.”