Key point 10-16.06. 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.
Many churches, schools, youth-serving charities, and recreational venues attempt to reduce the risk of liability for injuries occurring during sponsored events by having participants sign a form that purports to exempt the host organization from liability for injuries caused by its own negligence. Such forms typically are called release forms, waivers of liability, or assumptions of risk. All too often churches and other organizations use forms found online, with no legal input or review. This can result in forms that are useless or of limited value.
There are a number of important considerations that church leaders should understand about release forms, including the following:
- Definition of release forms, waivers of liability, assumption of risk forms (collectively referred to as “release forms” in this article).
- Legal requirements for a valid release form.
- Relevance of state laws.
- When release forms are rejected by the courts.
- Injuries to minors.
- Indemnification agreements and hold harmless clauses.
- Impact on insurance coverage and risk management.
Each of these considerations is addressed below, along with a summary of all the leading cases involving release forms used by churches and other charitable organizations.
A “release form” is a form, signed by two parties, in which one party releases the other from liability for specified risks. Release forms can be retroactive or prospective. A retroactive release is one that ordinarily is executed as part of a settlement of a legal claim. A prospective release is one that purports to relieve one party from liability for legal claims arising after the release is signed. Prospective releases are the most common form of release used by churches and other charitable organizations.
The term “waiver” is generally used synonymously with “release,” and is defined as “the intentional relinquishment of a known right.”
An “assumption of risk” is similar to a release agreement. As one court observed: “In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.”226 Cohen v. Five Brooks Stable, 159 Cal.App.4th 1476 (Cal. App. 2008).
While release agreements and assumptions of risk are similar, there are subtle differences. Most importantly, a release agreement seeks to mitigate risk by having one person release another of all risks, while in an assumption of risk one party voluntarily assumes all known risks of a particular activity. Often, release forms combine both release and assumption of risk forms.
The Importance of Legal Counsel
The importance of legal counsel in drafting release forms is illustrated by a recent federal court ruling in Tennessee.227 Hayward v. Trinity Church, 2015 WL 1924552 (M.D. Tenn. 2015).A federal district court in Tennessee ruled that an agreement between a church and a church employee to arbitrate all employment disputes was enforceable, and therefore a dismissed church employee’s lawsuit seeking unpaid overtime compensation had to be arbitrated. However, the court noted that the agreement contained a “venue clause” mandating that any arbitration occur in Orange County, California, and referencing several remedies employees can assert before the California Department of Fair Employment and Housing. Clearly, the church was using a template that was intended for use in California, and neglected to make it Tennessee-specific. An attorney would have flagged this provision, and spared the Tennessee church of the needless expense of litigating in California.
2. Legal requirements for a valid release form
Many courts have noted that release forms are contracts, and as a result are governed by contract law. This means that a release form, to be legally enforceable, must satisfy the following elements of a valid contract:
- a. two or more contracting parties
A release form generally is a contractual agreement between an organization sponsoring an event and a participant.
- b. consideration
In the typical contract, one person (the “promisor”) makes a promise to do something for the benefit of another (the “promisee”), in return for which the promisee provides the promisor something of value. The value provided by the promisee to the promisor in exchange for the promisor’s promise is referred to as “consideration.” The requirement of consideration is what distinguishes legally enforceable promises (i.e., contracts) from unenforceable promises.
Many release forms used by churches are legally unenforceable because the church provides nothing of value (consideration) in exchange for the promisor’s promise to release the church from liability. The same is true for many release forms used by schools and other youth-serving charities, recreational and amusement facilities, and employers.
How can this lack of consideration be corrected? How can church leaders insure that this contractual requirement is met? Perhaps the simplest way is for the release form to declare that “in consideration of” the promisor being allowed to participate in a specified church activity, the promisor releases the church, and its employees, volunteers, staff, and board, from liability for death or injury occurring during the activity. Here’s an excerpt from a release form used by a state university for non-student adults who participate in a specified activity:
In consideration of my participation in the Activity or Trip, I hereby accept all risk to my health and of my injury or death that may result from such participation and I hereby release the University, its governing board, officers, employees and representatives from any and all liability to me, my personal representatives, estate, heirs, next of kin, and assigns for any and all claims and causes of action for loss of or damage to my property and for any and all illness or injury to my person, including my death, that may result from or occur during my participation in the Activity or Trip, whether caused by negligence of the University, its governing board, officers, employees, or representatives, or otherwise. I further agree to indemnify and hold harmless the University and its governing board, officers, employees, and representatives from liability for the injury or death of any person(s) and damage to property that may result from my negligent or intentional act or omission while participating in the described Activity or Trip.
Note that this form satisfies the consideration requirement since it specifies that the promisor’s participation in the activity is the consideration provided by the University in exchange for the promisor’s promise to release it from liability.
But compare the following excerpt from a release form from a private college:
I agree, for myself, my heirs and my personal representative(s) to release the College and its trustees, agents and employees, including student leaders of such activities, from any and all liability for damage to personal property, or for personal injury of any kind, including death, which may result from the inherent risks of my participation in the activity. I further waive any and all such claims, and agree to indemnify and hold the College and its trustees, agents, and employees, including student leaders of such activities, harmless from and against any and all claims that may be made against them as a result of injury to me or damage to my property.
This form is unenforceable since a promisor receives nothing of value in return for his or her promise to release the college from all liability for death or injury.
The courts generally do not evaluate the adequacy of consideration. As a result, the courts will not evaluate whether allowing a person to participate in a specified church activity constitutes sufficient consideration for his or her promise to release the church from liability for injuries that may occur.
The lack of consideration renders any contract or promise unenforceable, as the following case studies illustrate.
Case study. A Tennessee court ruled that a church’s decision to make biweekly payments to a former pastor’s widow was unenforceable since the church received nothing of value (“consideration”) in return for its commitment, and therefore the church’s decision to discontinue making the payments did not amount to a breach of contract. Cochran v. Robinwood Lane Baptist Church, 2005 WL 3527627 (Tenn. App. 2005).
Case study. A Pennsylvania court addressed the issue of whether a church acted properly when it dissolved due to declining attendance, sold its assets, and transferred most of the sales proceeds to the pastor as compensation for wages that it was previously unable to pay. The court concluded that the pastor’s claim for compensation for his past service was unenforceable under contract law. It noted that contracts, to be enforceable, must by supported by consideration, meaning that both parties must receive something of value in exchange for their commitments. The court noted that the church’s commitment to pay the pastor $635,000 in back wages was unenforceable since “past services” are never valid consideration for current obligations and commitments. As a result, the court concluded that payment of additional sums to the pastor in excess of his specified salary would constitute a gift, which would be inconsistent with the charitable purposes of the church. In re First Church, 2011 WL 2302540 (Pa. Common. 2011).
c. an agreement that is sufficiently definite
The essential terms of a contract must be sufficiently definite to be understood by the parties. As one court noted, “The intent of the parties must be specifically stated in the four corners of the contract.” Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190 (Texas 2004).
d. parties with legal capacity to make a contract
The parties to a contract must have the legal capacity to enter into the contract. This means that they have “sufficient mental capacity to understand the nature and effect of the particular transaction.”228 McElroy v. Mathews, 263 S.W.2d 1, 10 (Mo.1953).It also means that they must not be under any “disability,” including being under-age. In all states one must be 18 years of age or older to enter into a valid and enforceable contract. As noted below, this has direct relevance to the release forms often used by churches. Anyone under the age of 18 lacks contractual capacity, and cannot sign an enforceable release form. Whether parents can sign a release form that releases their minor child’s claims is a question that is addressed later in this article.
e. mutual assent
The parties to a contract must both assent to the agreement. Mutual assent may be negated by a number of conditions, including fraud, mistake, undue influence, or duress.
f. no legal prohibition precluding contract formation
Even if the technical requirements for a legally enforceable contract are met, a court may refuse to enforce an agreement on several grounds. This often happens when the civil courts review the validity of release forms and assumption of risk forms given the disdain with which they view attempts to avoid liability for injuries caused by the releasee’s negligence. The more common grounds for refusing to enforce otherwise valid contracts include the following:
(1) gross negligence or intentional acts
Several courts have ruled that release forms cannot release claims for injuries caused by the gross negligence or intentional acts of another.
Case study. A woman (the “victim”) hired a guide for a family adventure in the Colorado Rockies that included an overnight rafting and camping excursion on a popular stretch of the Arkansas River running through Brown’s Canyon. After she arrived at the outfitter’s office, the victim and the other rafters received the usual guidance, made the usual preparations, and signed the usual release before heading down river. The next day, while maneuvering around a rapid the raft capsized. Everyone else was fished out of the water, but in a heartbreaking turn of events, the current swept the victim into a logjam where, despite repeated efforts to save her, she drowned. Eventually, her son brought a lawsuit against the rafting company alleging negligence. In reply, the company sought summary judgment, arguing that the release the victim signed shielded it from liability. With this the trial court agreed and proceeded to enter judgment for the company.
On appeal, a federal appeals court upheld the validity of the release form and the dismissal of the family’s claims on the basis of the release form the mother had signed. The appeals court noted that “no one before us doubts that [the victim] signed a release. Or that the release purported to absolve the rafting company from any claim of negligence. The only question in this appeal is whether the law permits private parties to enforce a contract like this. Under common law, it’s long settled that courts will not give effect to contracts purporting to release claims for intentional, knowing, or reckless misconduct. But claims of negligence are a different matter. The law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence.” Espinoza v. Arkansas Valley Adventures, LLC, 809 F.3d 1150 (10th Cir. 2015).
Church leaders should not assume that a release or assumption of risk form signed by a competent adult will apply to deaths or injuries caused by the gross negligence of the church or its agents. Distinguishing between ordinary negligence and gross negligence is often a difficult task, but this distinction is significant because it generally will determine the validity of a release or assumption of risk form. Note the following attempts to define gross negligence:
- “The distinction between ‘ordinary and gross negligence’ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary. … Ordinary negligence—an unintentional tort—consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. Gross negligence long has been defined … as either a want of even scant care or an extreme departure from the ordinary standard of conduct. … A liability release, to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.”229 Jimenez v. 24 Hour Fitness, 188 Cal.Rptr3d 228 (Cal. App. 2015).
- “Negligence is defined as ‘any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for protection of others against unreasonable risk of harm.’ A claim for gross negligence, however, sets the evidentiary hurdle at a higher elevation: Gross negligence is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist. … We have viewed gross negligence as something more than simple negligence, and likely more akin to reckless conduct.”230 Beall v. Holloway-Johnson, 130 A.3d 406 (Md. 2016).
How can a church be guilty of gross negligence? It is possible, depending on an examination of all the facts and circumstances, that the following practices could be grossly negligent:
- A church’s governing board refuses to institute a policy to reduce the risk of child molestation at church or during offsite church activities. The church uses a volunteer in its children’s ministry for whom no criminal records check or references were obtained. The volunteer sexually molests a child during a church activity. It is later discovered that the volunteer is a pedophile who molested a children in a previous church.
- A church uses van to transport children to an offsite activity. It selects a driver whose driving record was not examined. The driver’s negligence results in a collision that injures some of the children. It is later determined that he had a suspended driver’s license.
- A church board is aware that the youth pastor frequently sends and reads text messages on his cell phone while driving his car on church business. Nothing is done about it. The youth pastor swerves into the oncoming lane while texting his girlfriend and collides with another vehicle.
- The church youth group goes swimming at a lake. No life guards are present, and the church provides only two chaperones to oversee 50 minors. Neither chaperone is certified in CPR. One of the minors drowns, and no one is available to start CPR.
It is important for church leaders to be familiar with the concept of gross negligence for the following three reasons:
- Gross negligence is a bar to the enforcement of release and assumption of risk forms.
- Gross negligence is the same standard that is applied to the availability of “punitive damages.” Punitive damages are damages that a court can award to an injured person, over and above compensatory damages, based on the defendant’s gross negligence or willful and wanton conduct. It is important for church leaders to be aware of this, since punitive damages are not covered under church insurance policies due to the public policy of not allowing entities to insure against their gross negligence.
- Gross negligence negates the limited immunity from personal liability accorded to the uncompensated officers and directors of churches and other nonprofit organizations.
These potentially disastrous consequences make it imperative for church leaders to understand the concept of gross negligence, and to avoid any decisions that, in retrospect, may be grossly negligent.
(2) unequal bargaining power
Many courts have refused to enforce release forms that are the product of unequal bargaining power between the parties.
Case study. A North Carolina court concluded: “Contracts which exculpate persons from liability for negligence are not favored, and must be strictly construed against the person seeking to escape liability. … An exculpatory contract that has been gained through inequality of bargaining power is unenforceable. In applying this exception to the general rule allowing the enforcement of otherwise-enforceable exculpatory clauses, reviewing courts give consideration to the comparable positions which the contracting parties occupy in regard to their bargaining strength, i.e., whether one of the parties has unequal bargaining power so that he must either accept what is offered or forego the advantages of the contractual relation in a situation where it is necessary for him to enter into the contract to obtain something of importance to him which for all practical purposes is not obtainable elsewhere.” The fact that a party could obtain the same or similar services from other vendors is a key factor in demonstrating equal bargaining power.231 Hyatt v. Mini Storage on Green, 763 S.E.2d 166 (N.C. App. 2014).
(3) public policy
Many courts have ruled that to be legally enforceable a release must not violate public policy. Some have concluded that any attempt to avoid the consequences of one’s negligence by utilizing release forms is a violation of public policy. This view is nearly universal in cases involving attempts to have minors release a church or other entity from liability for its negligence. But some courts interpret “public policy” more broadly and refuse to enforce release forms signed by competent adults. The use of release forms to release a church or other entity from liability for its negligence in cases involving injuries to minors is addressed later in this article.
Some courts have refused to enforce release forms on the basis of unconscionability. A contract or clause is unconscionable when there is an “absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.”232 8 Williston, A TREATISE ON THE LAW OF CONTRACTS § 18:9.
Case study. A release of prospective negligence may be valid. Such a release must be clear and unequivocal to insulate a party from liability. … It must also not be unconscionable. Unconscionability is a concept that is used sparingly. Traditionally, an unconscionable contract is one which no man in his senses and not under delusion would make on the one hand, and as no honest or fair man would accept, on the other. But mere disparity between the bargaining powers of parties to a contract will not support a finding of unconscionability. There must be an absence of meaningful choice and contract terms unreasonably favorable to one of the parties. There is no deprivation of meaningful choice if a party can walk away from the contract.233 Ketler v. PFPA, 2016 WL 192599 (Del. 2016).
Many courts have refused to enforce release forms that contain ambiguities.
3. Why release forms are disfavored
Many courts have noted that attempts to avoid the consequences of one’s negligence through release forms, assumption of risk forms, and exculpatory clauses, are highly disfavored. As a result, the courts will invalidate any form of liability release that fails to strictly comply with the legal requirements for an enforceable release (summarized above).
The low regard the courts have for liability releases is based on two considerations. First, as noted above, allowing a church or other entity to avoid liability for deaths and injuries caused by its negligence is inappropriate, especially if there is a disparity in bargaining power. Second, many courts have noted that the use of release forms makes organizations less vigilant in assessing and managing risks. As one court noted: “The law does not favor exculpatory agreements because they encourage a lack of care.”234 Walters v. YMCA 96 A.3d 323 (N.J. App. 2014).
Church leaders often assume that minors can sign release forms that purport to release the church from injuries caused by the negligence of the church and its agents, or, that parents can sign such forms on behalf of their minor children. These perceptions ordinarily are false, since in all states minors (persons under the age of 18) have no “contractual capacity” and therefore cannot sign enforceable liability releases, and in most states parents cannot release the legal claims of their minor children.
- 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. The court concluded that the release signed by the victim’s mother was not an “informed” decision: “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.235 Wycoff v. Community Church, 251 P.3d 1260 (Colo. App. 2010).
- A New York court ruled that a release form signed by a high school student and his parents did not relieve a church-operated school from liability for injuries sustained by the student when he was sexually assaulted by other students while on a school-sponsored trip to Europe. The court concluded that the release form was “unenforceable because it does not clearly and unequivocally express the intention of the parties to relieve the [defendants] from liability for injuries sustained as the result of their negligence.”236 John Doe v. Archbishop Stepinac High School, 729 N.Y.S.2d 538 (2001).
A few courts have reached the opposite conclusion, and have allowed parents to execute preinjury releases on behalf of their minor children. But note:
- These cases represent a minority view that has been recognized in only a few states.
- Many of these cases are older, and are of dubious precedential effect today.
- Some of these cases are based on state laws that empower parents to sign preinjury releases on behalf of their minor children only in specific circumstances, such as equine event or skiing, and up to specified limits. These laws are subject to change.
In conclusion, while the courts loathe attempts to avoid the consequences of one’s negligence through release forms and assumption of risk forms, and will scrutinize such forms for any basis to avoid them, many will enforce them if several conditions are met. Here is a checklist summarizing 16 points to consider in evaluating the validity of a release or assumption of risk form:
1. Release forms will be strictly and narrowly construed against the church.
2. The courts are more likely to enforce a customized release or assumption of risk form than a generic form found on the Internet. Ideally, the form should be drafted, or at least reviewed, by legal counsel. The importance of legal counsel in drafting release forms is illustrated by a recent federal court ruling in Tennessee that was described previously in this article. The case involved a legal form used by a church that was found on the Internet. Church leaders failed to notice that the form required all employment disputes to be arbitrated in California! Clearly, the church was using a template that was intended for use in California, and neglected to make it Tennessee-specific. An attorney would have flagged this provision, and spared the Tennessee church of the needless expense of arbitrating in California.
3. Release forms will not be enforced if they are ambiguous.
4. Release forms will not be enforced if the person signing the form does not do so voluntarily.
5. 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 being released. Activities giving risk to injuries must be specifically described along with a listing of the possible injuries.
6. Releases and assumption of risk forms should contain language releasing the releasee from liability based on the negligence of itself or its agents “to the fullest extent permitted by law.”
7. Releases and assumption of risk forms should refer to both known and unknown risks associated with the planned trip or activity.
8. Releases and assumption or risk forms are contractual documents, and so the requirements for a valid contract must be met in order for such forms to be legally enforceable. One common mistake in drafting such forms is a failure to identify “consideration” provided by the releasee to the releasor in exchange for the releasor’s commitment to release the releasee from liability. The form should begin with the following or similar language: “In consideration of my being allowed to participate in [name the event] and other valuable considerations the receipt of which is acknowledged, I hereby agree to the following. …”
9. 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 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).
10. Many courts have refused 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.
11. 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 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?
12. Some courts refuse to enforce a release form that is inconspicuous. To illustrate, if the language of release is not in bold font that is larger than the remainder of the document text, or is buried in another, larger document, without a bold heading and other devices to draw attention to it, it may be unenforceable. A release or assumption of risk form should be a separate document that is not commingled with in a larger document, such as an application or registration form.
13. 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.
14. Avoid use of release forms that contain the signatures of everyone on a trip. Each participant should sign his or her own form.
15. 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.
16. 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 “parental consent form” that:
- consents to their child participating in the specified activity;
- 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);
- lists any allergies or medical conditions that may be relevant to a physician in the event of an emergency;
- lists any activities that the parents or guardians do not want the child to engage in; and
- authorizes a designated individual to make emergency medical decisions for their child in the event parents or guardians cannot be reached.
Ideally, a parental consent 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.
Key point. Churches should not use releases or assumption of risk forms without discussing them with their insurance agent and a local attorney.