The Importance of Waivers and Consents for Churches and Nonprofits

By December 9, 2020 Church, Nonprofit

In Arizona, liability waivers are considered to be legally enforceable contracts in which participants in an event or activity assume the risk for potential injury. However, liability waivers only protect organizations from incidents that arise from ordinary negligence; waivers do not protect Arizona nonprofits from gross negligence, which is generally defined as “the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others.”

In addition, a liability waiver will not protect a nonprofit in cases where an injury has been caused by recklessness, an intentional wrongful act, or in violation of state or federal law. And just because a participant signs a liability waiver or consent form does not provide a nonprofit with blanket immunity.

In Arizona, it is up to a jury to determine whether a liability waiver applies to a specific situation. The plaintiff has the burden of proof to show that a defendant owed him or her a duty of care and breached that duty, thereby voiding the liability waiver. The language in a liability waiver must contain specific factors in order for a court to enforce it, including:

  • Clear language describing the hazards of the activity
  • Specific as to the potential risks
  • In writing as opposed to a verbal waiver

Guidance for Using Waivers and Consents

Although waivers and releases don’t provide nonprofits with blanket protection, there are a number of legal and other benefits to using them as long as they are drafted properly:

Be specific. Waivers that are too broad or general are more likely to be voided by a court since it may be unclear to the participant exactly what he or she is waiving. Language in waivers and consents should be specific, describing the activity in detail and identifying any potential risks associated with the activity.

Be clear. Courts will consider whether a person can understand a waiver or consent without any legal training so your nonprofit’s waiver should be drafted with that in mind. Forms that include pages of legal terms and jargon are actually more difficult to legally enforce, so keep it simple.

Be thorough. Waiver and consent forms should provide ample opportunity for participants to provide the organization with information about any unique needs or requirements. Participants should be asked to list medications, medical restrictions, allergies, illnesses, injuries, or any other special needs. If you plan to photograph or videotape the activity, consent for media usage is also appropriate. Parents and participants should also be required to certify that a participant is fit for any physical activities that may be involved and provide consent for the participant to receive any necessary medical care.

In addition, nonprofits should carry adequate liability insurance to fill any legal risk gaps that may exist.

Provident Law’s nonprofit attorneys can help churches and religious organizations draft appropriate waivers or releases. We stand ready to counsel and serve churches, charities, and foundations, as well as private schools, colleges, universities, and other types of nonprofit organizations—providing broad transactional and general counsel services in Arizona and surrounding areas. Contact us to learn more.