Minors and the Use of Releases
Many K-12 schools, colleges, and universities 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 aren’t enforceable in most states.
For your institution to effectively use releases when dealing with minors, follow these practices.
Consult With Legal Counsel
A local attorney is best positioned to advise institutions on state laws covering releases. Given the wide variation in state laws, counsel can determine whether a release or alternative risk transfer tool, such as an assumption of risk form, 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 right to sue but most states prohibit them from waiving their child’s right to sue.
- In some states, releases for certain activities, such as agreements that limit the liability of pools, gyms, and recreation and amusement parks, are never enforceable.
Consider an Assumption of Risk Form for Minors
Because releases signed by minors are not enforceable, an assumption of risk form might be an appropriate alternative. The form is similar to a release but doesn’t contain the language considered troublesome by many courts: a request that those signing surrender their right to sue. Rather, an assumption of risk form asks the person signing to acknowledge the risks associated with an activity. It also can minimize costs by deterring litigation or serving as a defense to negligence claims.
Review these guidelines when preparing an assumption of risk form:
- Explicitly title the document an “Assumption of Risk.”
- Narrowly tailor the language to the specific activity the document covers. For example, describe in detail the activity, 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.
- Have signers specifically acknowledge they understand and voluntarily assume the risks of injury associated with the activity.
- Provide the signing parties time to review and consider the document.
Consider a Release for Guardians, Adult Students
Parents may not be able to waive a child’s right to sue, but can waive their own rights. When dealing with parents of minors and adult students, consider using a release. For more guidance on drafting releases review Checklist: Drafting Effective Releases.
Ensure Releases Don’t Replace Risk Management
A release or assumption of risk form isn’t a substitute for risk management. Takes additional steps to mitigate or eliminate the risks associated with the activity, including an overall risk assessment and proper event planning and organization.
About the Author
Alyssa Keehan, Esq.
CPCU, ARM, Director of Risk Management Research & Consulting
Alyssa oversees the development of UE’s risk management content and consulting initiatives, ensuring reliable and trustworthy guidance for our members. Her areas of expertise include campus sexual misconduct, Title IX, threat assessment, campus security, contracts, and risk transfer. She previously handled UE liability claims and held positions in the fields of education and insurance.