April 29, 2024

Is It OK For a Church to Require a Liability Waiver

If my Google search is a reliable measure, here is a conversation no one is having: should it be morally acceptable for a church to require a liability waiver from its members before they can participate in church activities like mission trips, camps, and retreats? As a follower of Christ who also runs a personal injury law firm, this question is squarely in my interest area. You’ve probably never thought twice about it since these waivers are so ubiquitous in our society—and churches are no different. But should they be? In this article, I’ll lay out some thoughts on why churches should re-think their liability waivers. Note, this discussion is not geared towards any specific church or denomination but attempts to broadly explore this question. We’ll break down the concept of negligence, the role of waivers, and their implications within a church setting. 

Understanding Negligence 

First, we need to define the term “negligence” as it is understood by most courts in America. Simply put, negligence refers to the unreasonable failure to fulfill a duty, resulting in injury to another party. A successful negligence claim requires the injured person prove some basic elements: a duty owed to the injured person, a breach of that duty, causation, and injury. Everyone has a duty to behave using “ordinary care,” which basically means that we have a duty to not act unreasonably. Therefore, generally speaking, an entity, including a church, is liable for someone’s injuries only if it acted unreasonably.

Waivers as Contracts of Adhesion 

Waivers are what law students call “contracts of adhesion.” You’ve entered into hundreds, if not thousands, of these types of contracts before. These contracts, like software terms of service, are generally non-negotiable and present a take-it-or-leave-it scenario. A key aspect to note here is the power differential these contracts represent. The entity proposing the waiver typically holds more power than the individual on the other side. For example, if you want to go golfing there is likely a waiver to sign. You can choose not to sign it, but then you can’t go golfing. If you want the product or service, you’ll need to sign. 

This power differential is heightened when we start thinking about churches. If I don’t sign the golf course’s waiver, I don’t get to go golfing. But, what are the implications of refusing to sign my church’s waiver? Pushing back on your church’s waiver may be viewed as a sign of distrust or disagreement with the church’s leadership or vision, and most people are likely to sign—even if they disagree—in order to avoid rocking the boat or seeming divisive.  

Do Waivers Even Help? 

The waivers we are discussing in this article says things like “you waive any and all claims against [the church] arising out of your participation in the activity.” They may include additional language that specifically states that negligence claims are being waived. I think many people have a mistaken belief that these types of waivers prevent frivolous lawsuits.  

In North Carolina, where I practice, waivers are an “affirmative defense.” This means that the person being sued (in this context a church) uses the waiver to respond to a claim. The injured person must first demonstrate all the elements of negligence, and then the church argues that they are not liable because there is a waiver. Put another way, the waiver only comes into play if the injured person is able to establish a valid negligence claim first, i.e., the church had a duty to the person; the church acted unreasonably; the church’s unreasonableness caused injury to the person; and the person has a legitimate, proven injury.  

In this way, waivers aren’t actually a shield to protect the church from baseless claims, but rather a sword that is used by the church (usually through its insurance company) to cut down and defeat otherwise valid claims. 

So here is the question: if the church was negligent and caused someone’s injury—shouldn’t it own up to it? 

Why Your Church Should Rethink Its Waiver 

If waivers don’t help defeat baseless claims, only valid ones, is it right for a church to use them against its members? I’m not asking if a church can, I’m asking if it should. If the church, through its employees, acted unreasonably and caused someone’s injuries, it should own up to it and compensate its member for the injury. The Bible is clear that God loves justice. In fact, one of the first ordinances given in Exodus 21 addresses compensating injured people. Churches should not contract for the right to avoid compensating people injured by their conduct. 

But wait, I can already hear you through my computer screen: “of course, we the church will take care of our people if we cause them injury, so there is no harm in signing the waiver.” But the opposite is just as true: if the church intends to take care of its people, it doesn’t need the waiver. It’s like when someone who says they would never get a divorce insists on a prenuptial agreement. If it’s not necessary, why do you want it? Also, while I completely understand that your intention is probably to do right by your members, will that be the intention of your insurance company or the attorney they hire on your behalf?  

So, we circle back to the central question we started with: is it right for a church to require a liability waiver from its members? This question goes beyond legal rights and obligations; it speaks to the very heart of our faith and the models of justice and compassion that our churches should embody. If we genuinely intend to take care of our flock, then why should we need these documents in the first place? If our commitment to justice and accountability is as solid as we profess, let’s remove these barriers and open our doors wide to transparency, humility, and unwavering responsibility. 

This information is provided by Harris Legal for general benefit, education, and interest. If you have a specific legal question, you should consult with an attorney.