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’ 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.

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 thirty-five 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 in 2002 the state supreme court ruled that parents cannot prospectively waive liability on behalf of their minor children. The next year, the state legislature overturned this ruling by enacting a statute allowing parents to “release or waive the 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.

Finally, the court ruled that the trial court improperly reduced the jury’s $4 million verdict to the amount of the church’s insurance coverage ($2 million). The court acknowledged that a state law allowed for levy and execution against assets of nonprofit entities only “to the extent” the entity would be reimbursed by liability insurance. But in cases where a plaintiff is not attempting to attach a nonprofit entity’s assets through levy or execution, there is no limit to the damages that can be assessed against such an entity. The court observed, “The existence and amount of liability insurance provides no basis for limiting a judgment against a nonprofit or charitable defendant. Rather, the issue of liability insurance is relevant only when a plaintiff seeks to levy and execute on a judgment.”

What This Means For Churches:
A release form is a document signed by an adult that purports to relieve a church (or other entity) 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 will not be enforced if the person signing the form does not do so voluntarily.
4. Release forms will not be enforced if the person signing the form is not informed (by the language of the form) as to the specific risk that is being released. Activities giving risk to injuries must be specifically mentioned.
5. Several courts have ruled that release forms cannot relieve a church from 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. Some states, like Colorado, have enacted legislation giving parents the legal authority to release their minor children’s claims. But, as this case illustrates, there are still limitations that may prevent parents from releasing their children’s claims (i.e., voluntary and informed consent, and no release of gross negligence or reckless conduct).
6. 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.
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.
10. 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.
11. 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.

Churches should not use releases without discussing them with their insurance agent and a local attorney. Wycoff v. Community Church, 251 P.3d 1260 (Colo. App. 2010).

This Recent Development first appeared in Church Law & Tax Report, November/December 2011.