“Go Out to All the Nations,” But Sign This Waiver First
Do liability waivers for minors on mission trips actually protect your church?
Youth mission trips are a ministry of many churches and nonprofits across the country. Every year, thousands of young people travel to destinations across the state, country, and even the globe. Before the plane takes off or the bus pulls away, most, if not all, churches and organizations will require parents to sign a release form, stating that the parent will not sue the church or organization in the event that their child gets injured on the trip. But do these releases actually protect your church? Recent case law suggests they do not.
Such releases, also known as “liability waivers,” “pre-injury releases,” “waiver agreements,” or “exculpatory clauses,” are par for the course for any entity hosting a trip or activity, especially one that involves minors. With these releases, parents waive future suits against the entity based on the negligence (understood as “unreasonable conduct”) of the entity or its agents (for example, employees) that results in injury to their child. However, waivers are limited to ordinary negligence, and cannot foreclose suits for gross negligence, recklessness, or intentional actions, which are of a more egregious nature than ordinary negligence, and involve a disregard for the well-being of others (for example, sexual abuse). Waivers of suits arising out of egregious behavior are never enforced by the courts.
While parental waiver agreements are common throughout the US, many states decline to enforce them. This means that even though a parent may sign a release form, they may still sue the church, school, or business for injuries sustained by their child.
The law on the enforceability of waiver agreements differs by state. In Virginia, all waivers, including parental waivers, are void. Conversely, the District of Columbia often enforces these waivers. In a 2013 case, the Maryland Court of Appeals held that a parental waiver protecting a commercial business was enforceable, but it is unclear whether this protection would also benefit nonprofit and charitable organizations. However, Virginia and Maryland (but not D.C.) continue to recognize the doctrine of charitable immunity under certain conditions, which would shield charitable organizations from tort liability in some, but not all, instances. For example, in Virginia, charitable immunity does not protect a church from a claim for negligent hiring or retention of employees, underscoring the importance for all churches to have robust hiring and employment policies. See “Common Pitfalls to Avoid in Hiring and Firing”.
New Jersey permits minors to bring suits against commercial establishments despite a parental waiver, but it is unclear whether suits would also be permitted against nonprofits and churches. The law in North Carolina follows a similar pattern as New Jersey, yet, while New Jersey statute recognizes charitable immunity under certain conditions, North Carolina abolished charitable immunity altogether, exposing churches and nonprofits to the possibility of lawsuits should the court refuse to enforce a liability waiver.
In Pennsylvania, liability releases are generally disfavored and likely will not protect against claims by injured minors. Under Pennsylvania law, a waiver signed by a parent would prevent only the parent from bringing suit; it would not prevent the minor from bringing a claim against the church or organization, as the parent’s waiver is not imputed to the child. Further, even if a minor were to sign a waiver, contracts entered into by a minor for non-essential matters (i.e., things not necessary for survival, such as food,) are considered voidable at the discretion of the minor, and thus a waiver would be voided once a minor files suit against the church.
What does all of this mean? It means that liability waivers are scanty protection for your church, and likely will not prevent a lawsuit against your church. Depending upon a liability waiver or the charitable immunity doctrine to protect your church is very risky.
A recent case from Connecticut, in which a teenager contracted a paralyzing disease from a tick bite on a school trip to China, highlights this stark reality.
In this case, the Connecticut court held the minor’s school responsible for the paralysis and brain injury suffered by the student, despite the existence of a validly executed liability release signed by the student’s mother. The court refused to enforce the release, and instead permitted the parents to bring a suit for negligence against the school. At the close of trial, the court found that the school was negligent for failing to warn the students about the risk of insect-borne illnesses in the region they were visiting and held the school liable for damages arising from the student’s serious injuries.
The lesson to be learned from this case is that churches and organizations hosting mission trips and activities for minors (and also for adults) cannot rely on a liability waiver to protect the organization from lawsuits. The practicable take-away is that churches must be organized, thorough, and prudent in planning mission trips and other activities. In the unfortunate occasion that someone gets injured and a suit for negligence is lodged against your church, if the court refuses to enforce the waiver, the court will look to see whether your church acted reasonably and prudently when determining whether the church can be held liable.
Reasonable and Prudent Checklist
Each mission trip calls for a unique location-specific discussion of what preventive measures are needed to protect against potential risks to the well-being of participants. Such risks (and possible preventive measures) may include:
- Health/Injury: Identify emergency and non-emergency health care providers in the destination locale, and have contact numbers at hand throughout the trip.
- Insect-borne illnesses: Instruct participants to bring, or have the church supply, bug spray, mosquito nets; recommend that participants wear long pants and shirts in colors that do not attract the insects that infest the area.
- Traveling to areas with non-potable/contaminated water: Provide bottled water for participants, and instruct them to use bottled water for all purposes, including brushing teeth or even bathing, if necessary. Bring water purification tablets or another method of purifying the water as a back-up plan.
- Traveling to/through areas with high crime: This is a problem that arises in both domestic and overseas travel, especially in popular destinations such as Mexico, Honduras, and Haiti. Seriously consider whether a mission trip for minors to a location known for high crime rates is feasible and prudent. If exposure to a high crime area is limited to briefly traveling through that area, but not staying there, it may be less of an issue. But make sure that safety protocols are in place (e.g., buddy system, curfew). Do your research on the local situation, and consider other locations that pose less of a safety risk.
- Weather: Advise participants of the average temperatures for the area during the trip, and recommend appropriate clothing. During transitional seasons, where temperatures may fluctuate unexpectedly, recommend that participants bring a variety of clothing options to cover any possibility.
- Physical exertion on trip: Be sure that participants will be able to meet the physical demands of the trip, be it walking, hiking, etc.
- Allergies: Know of any seasonal, food, or medicinal allergies participants may have, and plan accordingly. Keep a list of allergies close at hand should a medical emergency arise. If a participant has an Epi-Pen, make sure that it is easily accessible at all times.
- Local guide: Include a trusted local or someone familiar with the area on the trip and in preparations.
- Language: Make sure there are individuals in the group who speak the local language.
- Transportation: Avoid unnecessary risk by hiring private transportation where possible. Especially in foreign destinations, avoid using local transportation as these are prone to crime and safety concerns in many countries.
- Chaperones: Be sure that you have a sufficient number of chaperones. If possible, include chaperones that have medical/first aid training.
To aid your church in planning overseas trips, check travel advisories from the Center for Disease Control, the State Department, and destination-country government sources, where available. Read travel advisories/tips provided by commercial guides. If your church has ministry connections with another church or nonprofit in the area where the trip will take place, consult with those who are local to the area about any risks or conditions.
In addition to preparing prudently, have parents and the minors sign release agreements that spell out the risks involved in the trip. If the court enforces liability waivers, then your church will likely be protected from suit. But even if a court does not enforce such an agreement, the signed document may be used for other purposes, such as showing that the minor/parent assumed the risk involved in the trip. While your church would be wise not to depend on a liability waiver as protection, it is nevertheless important to have these waivers signed by participants and parents.
Mission trips have the potential to change the lives of the young people in your congregation. By preparing diligently, you will ensure that this change is for the better, and that a week-long mission trip does not lead to years of litigation for your church.
Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers at firstname.lastname@example.org, or Elyse Smith at email@example.com specific legal advice on this issue for your needs. Simms Showers LLP © 2014