Pastor, Church & Law

§ 10.11.01

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Key point 10-11.01. Churches can reduce the risk of liability based on negligent supervision for injuries not involving sexual misconduct by adopting risk management policies and procedures.

Churches can reduce the risk of liability based on negligent supervision for injuries not involving sexual misconduct by adopting risk management policies and procedures. Several risk management strategies addressed in section 10-09.03 are relevant in this context as well, and should be reviewed carefully. Here are some additional risk management strategies:

1. Adequate Number of Qualified Adults

Use an adequate number of adults to supervise all church activities, especially those involving minors. Also, be sure that the adult supervisors are adequately trained to respond to emergencies.

2. Checking the Policies of Other Charities ("benchmarking")

Check with the Red Cross, YMCA, Boy Scouts, and similar organizations to obtain guidelines on the number of adults to use, the training of adult workers (based on the type of activity involved), and other safety procedures. Reliance on such standards makes it much less likely that a church will be guilty of negligent supervision. Be sure that you document your research.

3. Swimming and Other Water Sports—Off of Church Premises

If your church sends minors on a trip that will involve swimming (or the possibility of swimming), there are a number of steps that you can take that will reduce the risk of drowning, and the church's risk of liability. They include the following:

• Encourage parents to accompany their children. The court in this case concluded that the charity's duty of care was greater because the victim's mother was not present.

• Have both parents sign a permission form that authorizes their child to participate in the event, and that discloses whether or not the child can swim. In some cases, it is not feasible or possible to have both parents sign (due to divorce, separation, or death). But church leaders should recognize that the best protection comes for having both parents sign.

• If the parental permission form indicates that the child cannot swim, then church leaders must recognize that they are assuming a greater risk by allowing the child to participate. This risk can be avoided by not allowing the child to participate. As one court noted in a case involving the drowning of a 12-year-old girl who could not swim, "the accident could have been prevented by not allowing her into the pool."[150] Turner v. Parish of Jefferson, 721 So.2d 64 (La. App. 1998). If parents consent to their child's participation despite his or her inability to swim, then under no circumstances should the child be allowed to attend the event without appropriate restrictions. The nature of these restrictions will depend on a number of factors, including the age of the child, the degree of supervision provided by adults, the availability of trained lifeguards, and the relative risk of the location. For example, lakes generally pose more danger than pools, because (1) the water is not clear, making it more difficult to monitor the activities of children or to quickly locate a missing child; (2) concealed hazards may exist below the surface; (3) emergency medical services often are more distant; and (4) the area is more likely to be unsupervised, with no lifeguards present. Selecting appropriate restrictions is often a very difficult task for the persons in charge of an event. One recommendation that may help is to ask other local charities (Red Cross, YMCA, Boy Scouts, Girl Scouts) what their policy would be under the same circumstances. Be sure to make a record of the person you spoke with, and the suggestion that this person made.

• Go to locations that have certified lifeguards on duty.

• Check with your church insurance agent for additional recommendations.

• Check with your denominational offices for additional recommendations.

• Check with an attorney for additional recommendations.

4. Avoid Hazardous Activities

Avoid high-risk activities. Some activities, such as rope-repelling, explosives, and the use of firearms, are so hazardous that a church may be deemed "strictly liable" if an accident occurs, no matter how much care was exercised in supervising the event.

5. Hayrides

Hayrides are inherently risky activities that have resulted in injuries and deaths to many persons. Many courts have found the sponsors of these events, including churches, liable for any deaths or injuries that may occur, usually on the basis of negligent selection of the driver of the truck or tractor that pulls the wagon, or negligent supervision of the event itself. Churches should not authorize or schedule such events (for minors or adults) without stringent safeguards to protect against injury and death. Here are 18 precautions to consider:

1. If minors are among the passengers, be sure that an adequate number of adult supervisors are present. Appropriate background checks should be performed on each one. Remember, hayrides sometimes occur partly or entirely at night, when darkness may conceal the conduct of child molesters on board a hay wagon. A similar risk occurs whenever movies are shown at church events with the lights dimmed or turned off. Check with other local charities, and the public school district, for their input regarding the appropriate number of adult supervisors when minors are present on hayrides.

2. Ideally, hayrides should be conducted during daylight so that hazards can be perceived and avoided both on and off the wagon. These may include bumps and holes in the road ahead, a lose hitch, or children dangling their legs over the side of the wagon.

3. No smoking, candles, lanterns, or other sources of flame should be allowed on hay wagons.

4. The wagon should never go faster than an adult can walk.

5. The wagon should be thoroughly inspected prior to use. Be alert to safety defects involving the hitch and wheels. If inherently dangerous conditions exist, the trip should be cancelled.

6. Check with other local charities that conduct hayrides, and see what risk management precautions they employ. The practices of other charities will constitute the standard of care by which your church will be judged. So, by aligning your practices to those of other charities, including the public schools, you will be managing risk.

7. If only adults are participating on a hayride, consider having them sign assumption of risk forms. Such forms are not a substitute for appropriate risk management.

8. Passengers should remain seated at all times while the hay wagon is moving. Adult supervisors must ensure that this policy is strictly followed, for both minors and adult passengers.

9. If minors are among the passengers, be sure that their parents have signed a form that (i) consents to their child's participation on the hayride; (ii) provides their contact information; (iii) designates one or more persons to make emergency medical decisions on behalf of their child if for any reason they cannot be reached; and (iv) lists any medical conditions or allergies that may be relevant in the event of a medical emergency.

10. If the wagon will be pulled by a truck or tractor, it is imperative for the church to exercise reasonable care in the selection of this person. Find out who the driver will be, and check the person's qualifications well before your hayride. Use an experienced driver who is familiar with the road. Find out how many times the driver has participated in hayrides; obtain references; check the person's driving record; find out how many accidents, if any, the person has been involved in while participating in hayrides. Do not use persons whose background suggests that they may pose a risk of harm to participants.

11. Never hitch more than one wagon to the tractor or truck.

12. Stay off pubic roads. This is especially true of roads with heavy traffic traveling at high rates of speed.

13. Ask local law enforcement for their recommendations on a road to use. In some cases, your local law enforcement agencies may offer to escort the hayride. At a minimum, they may offer safety recommendations.

14. Have adults drive a vehicle in front of and behind the wagon.

15. Do not let minors ride on a tractor, or in the back of a truck, that is pulling the wagon.

16. Check with your church insurance agent for additional recommendations.

17. Check with your denominational offices for additional recommendations.

18. Check with an attorney for additional recommendations.