Perhaps you have had to ask people to sign waivers, or undoubtedly you have had to sign them yourself at some point. Have you ever wondered what a waiver form is really meant to do? This article will add clarity to waivers’ purpose and their role as a tool in your ministry.
This article uses the term waiver, but you will also often hear terms such as permission forms or release forms. These terms have distinct definitions but are often used interchangeably in this sense.A waiver is a contract. It is a written agreement between two or more parties that attempts to limit or relieve one party (person or organization) of liability exposure in exchange for allowing a person to participate in an activity. It has limitations and is only one tool among many in your operational toolbox.
Having participants or parents/guardians execute waivers and collecting them for every activity is certainly not convenient. So what do waiver forms actually accomplish for us, and why should we insist on them?
Limitations of a waiver
Waivers are a bit like a lighthouse, which shines a light but may not actually stop a ship from wrecking on the rocks. What they can do is form an agreement, communicate the nature of the activity. When coupled with an effective program, a wavier can cause a person or a parent/guardian to consider if the event is something they want to do.Unfortunately, a signed waiver will not immunize the organization from liability. Waivers have limitations and are not favored in the law. Judges will attempt to limit or exclude them as the law views waivers as unfair and, in many instances, not specific enough to constitute a meeting of the minds. Just because you notified someone of risk, and they signed the waiver purporting to immunize the organization from liability does not guarantee a complete defense in the event of a claim. Well-run events with sound risk management practices are your best defense.
Waivers handed out five minutes before the bus pulls out for the event are generally not adequate. Waivers should be provided days or weeks before the event, and sufficient time should be given for review and questions.
Generally, the less specific the waiver language, the less useful it will serve you. Specificity is essential, as courts resist enforcing prospective waivers or waivers that purport to limit future events’ liability. A court will try to focus on whether the waiver was a “knowing waiver.” In other words, did the person signing the waiver understand completely what they were waiving? A comprehensive waiver may appear to be better, but it is less likely to be enforced. In some instances, a very broad waiver may be excluded from the evidence considered by a jury.
The impact of a parent’s signature for a minor child is also limited. In most jurisdictions, parents cannot, under many circumstances, waive the rights of a child. If a child is injured due to a church’s negligence, the child owns the claim – not the parent. To the extent a parent has a claim against the church for injury to a child, their signature may waive their parental claim. Still, it will have little impact on the claim of the minor child.
Here's why you need to use a waiver
Policy - There are times that a waiver, permission, or release form may be required by policy, such as in a school setting or for Pathfinders and other youth activities. Please check with your conference to ensure you are using the required forms.Emergency Medical Care - A medical release is a common type of waiver that is often needed to obtain emergency medical treatment, especially for minors. For example, if medical releases are not obtained before a foreign mission trip, medical care could be delayed or denied.
Communication - Waiver forms can also serve as a formal communication tool. It is a way to alert a person, such as a parent or legal guardian, about the activities and risks that are planned/anticipated. It offers an invitation for that person to respond with information or a decision about their own, or their minor child’s, participation in that activity or event. As a caution, a waiver should not be the exclusive communication tool. A waiver and other written communication clearly describing the event are preferred. It better describes what will happen in the event. For some events which involve higher risk activities, a meeting or orientation session should be scheduled.
For example, your form may alert a parent that your youth group will be spending time at a campground, and there will be hiking in nature, and swimming. The request is for the parent to consider this information and agree that the child can participate with the known risks or not agree and not participate.
If a child has a known allergy that would be aggravated by a nature hike or does not know how to swim, these would be reasons a parent might choose to not permit the child to participate in one or both of those activities. At the least, the waiver may spark some discussion about the event’s details and what safety measures are in place to mitigate the risk.
It is true that each case rests on its own merits and specifics, but your defense is not likely improved by not having the basic protections of a good waiver in place.
What do waivers do?
While waivers cannot wholly insulate an organization from claims, there are a several of reasons having them is essential, not counting avoiding liability entirely. The waiver can serve as evidence of:- Parental consent for a minor child to participate in the specifically described activity.
- A parental declaration that a minor child can participate in the event (e.g., if the activity involves boating or swimming, the parents or guardians should indicate whether the child is able to swim).
- A knowing disclosure of medical conditions including allergies or food restrictions that may be relevant to the event’s operation or to a medical provider.
- An opportunity for parents/guardians to list any activities they DO NOT want the child to participate in. Note that if such a restriction is put in place, the sponsoring organization MUST adhere to it.
- Authorization of staff or a specifically designated person to make emergency medical decisions for the minor child.
Your conference may already have such a form for you to use. We encourage you to check with the office and use the form they have prepared for you. Otherwise, please reach out to your Adventist Risk Management representative, who will be happy to share our template form with you. Our template should still be reviewed by your conference and local legal counsel and modified for your use.
Under the best-case scenario, the waiver form should be signed by all legal parents/guardian. Ideally the signatures should be notarized. If only one parent or guardian signs, the non-signing parent can attempt to get out from under the waiver in a claim or lawsuit.
Waivers should be kept for a time after the event ends. This may be years or if minors are involved, many years. Throwing the form out after returning from the outing defeats the purpose, as claims may not be presented for some time after the event. Waivers can be scanned and kept electronically. Bottom line, a waiver lying in a landfill will not help the organization if a claim is presented.
I hope this article has given you some perspective of what waivers can and cannot do and what you are trying to achieve when you ask someone to sign one. Remember these key takeaways:
- Waivers should be written in clear language.
- The waiver should clearly describe the actual, specific activities that will be part of your planned event.
- Lastly, sufficient time should be given for parents and guardians to review the waiver and ask questions.
- Action should be taken based on the responses and information shared.
A special "thank you" to Robert Burrow, Esq., Chief Legal Counsel with Adventist Risk Management, Inc., for contributing to this article.
Image Credits: iStock/barisonal
