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    April 2014

    Minors and the Use of Releases

    Many educational institutions rely on releases to educate students and parents about an activity’s risks and to transfer or share liability. But releases signed by or on behalf of minors are not enforceable in most states. To effectively use releases when dealing with minors, the following practices are recommended.


    Consult With Legal Counsel

    A local attorney is best positioned to advise educational institutions on state laws covering releases. Given the wide variation in state laws, counsel can determine whether a release or alternative risk transfer tool is preferable. Examples of how the enforceability of releases depends upon the jurisdiction and the underlying activity include:

    • In general, parents and guardians can waive their own right to sue but most states prohibit them from waiving their child’s right to sue. At least two states—Alaska and Colorado—recently adopted laws that grant parents this right.
    • In some states, releases for certain activities are never enforceable, such as agreements that limit the liability of pools, gyms, and recreation and amusement parks.

    Consider an Assumption of Risk Form for Minors

    Because minors cannot sign a release, an assumption of risk form may be an appropriate alternative for them. The form is similar to a release but does not contain the language considered troublesome by many courts: a request that those signing give up their right to sue. Rather, an assumption of risk form asks the person signing to acknowledge the risks associated with an activity. Additionally, it can minimize costs by deterring litigation or serving as a defense to negligence claims. Consider the following guidelines in drafting an assumption of risk form:

    • Explicitly title the document an “Assumption of Risk.”
    • Narrowly tailor the language to the specific activity covered by the document. For example, describe in detail: the activity; the location; start and end times or dates; and potential risks of injury, such as severe bodily harm or death.
    • Require those signing to initial the description of the risks and injuries.
    • Signers should specifically acknowledge they understand and voluntarily assume the risks of injury associated with the activity.
    • When issuing the document, provide the signing parties time to review and consider the document.

    Consider a Release for Guardians and Adult Students

    A parent may not be able to waive a child’s right to sue, but can waive his or her own. When dealing with parents of minors and adult students, consider using a release. For more guidance on drafting releases review Checklist: Drafting Effective Releases.


    Releases should not supplant risk management

    A release or assumption of risk form is not a substitute for risk management. Ensure the institution takes additional steps to mitigate or eliminate the risks associated with the activity, including an overall risk assessment and proper event planning and organization.


    Resources

    West York Area School District (PA) Assumption of Risk Form
    University of North Carolina at Chapel Hill High School Student Laboratory Worker Agreement
    Roberts Wesleyan College (NY) Summer Camp Participation Agreement Form
    Washington and Lee University Acknowledgment and Assumption of Risk Form


    1 Comments

    • Avatar

      Excellent advice - will share with our legal team. TS

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