Electronic Waivers and Signatures

Electronic Waivers and Signatures

Church events are the lifeblood of any congregation’s community. From youth camp to volunteer activities to childcare, parents love having kids enjoy the events their church hosts every week. But not a week goes by without a child being injured at some church-sponsored event somewhere. Even the most innocent of actions can lead to injury, and as lawyers, we are often faced with the question of “Who is legally responsible?”

When the worst of the worst situations occur—the death or serious injury of a child—the questions of “why,” “how,” and “who” are not far behind, many times being asked by a plaintiff’s attorney representing the child, or a family member such as the parent or parents. Churches take the care of the children in their congregation seriously, and significant amounts of time and money are put into employee and volunteer training and screening. But no background check, policy or procedure will stop a child from tripping, being assaulted by another minor, or suffering a medical emergency while at a church-sponsored event.

In order to limit liability, many organizations use liability releases and waivers. But while these documents are almost universally used and signed—even some lawyers will sign them without reading them—the enforceability of such waivers is usually in question until the document is needed. To further complicate matters, in today’s technologically-advanced age, getting a real (or sometimes called a “wet”) signature can seem impossible. Often, children will attend an event without their parents having ever stepped foot on the church property—so how could a valid signature ever be obtained?

Electronic Signatures

Realizing that technology was changing the world we live in, the United States Congress passed the Electronic Signatures in Global and National Commerce Act (“ESGNC”), to allow for legally enforceable electronic signatures. Section 7001(a)(1) of the ESGNC states: “a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form.”[1] This federal law set the groundwork for the Uniform Electronic Transactions Act (“UETA”) which has been adopted in some form by forty-seven (47) states and the District of Columbia. These state laws substantially mirror the ESGNC and allow for the enforceability of electronic signatures and contracts in compliance with state law.

Essentially, federal and state laws allow the possibility of obtaining parental authority and waiver of liability for church events by using an electronic signature. Now, we say that it allows the “possibility” because there are other facts and circumstances the law requires of the parties before an online signature is typically considered enforceable. While each state has specific regulations and possible alterations to the laws mentioned above, there are three primary factors we believe churches should consider before using electronic signatures for their liability waivers and releases.

First, the use of electronic signatures and contracts will only be enforceable if the parties agree to conduct “business” electronically. Specifically, the UETA states: “[The UETA] applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct.”[2]

Second, the electronically-signed document must be stored. If the signer or sender prevents storage of the signature, or their operating system prevents storage of the signature, the signature is not valid, and the agreement is unenforceable. Section 8 of the UETA requires the retention of the signature for all parties. Retention is key, and Section 8 of the UETA states in subsections (a) and (c):

(a) An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.

(c) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient.[3]

Third, and finally, the signature must be attributable to the person allegedly signing the document. This means you must show that the person who physically signed the document electronically (the person who used the computer or electronic device) is the same person to which the signature is attributed—this is key. In other words, a parent’s electronic signature obviously won’t be enforceable if the child actually signed a parent’s name on the computer or, if it cannot be determined that the parent actually signed the agreement. The UETA states:

(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.

(b) The effect of an electronic record or electronic signature attributed to a person under subsection (a) is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties’ agreement, if any, and otherwise as provided by law.[4] Practically speaking, if you want an electronic signature to be valid, there must be some evidence showing the signature was provided by the authorized person –  which in the case of a youth event is a parent or legal guardian. You cannot simply have a blank where the parent or legal guardian signs their name. Verification can be accomplished several ways:

  1. Verification through an email account;
  2. Verification through a known parent telephone number; or
  3. Provision of identifying information.[5]

These suggestions are not always feasible, and there may be other options for verification. While each state may require different standards on electronic signatures, without meeting the verification requirement, your electronic waivers would not be enforceable. We recommend you speak with your church law attorney to discuss how best to format online waivers for electronic signatures or for recommending a third-party electronic document provider with appropriate electronic signature verification. For our clients, we often take the time to use their online registration systems ourselves, to ensure that the verifications and storage requirements are met.

Enforceable Waivers

Now that you have figured out how to use legally enforceable electronic signatures, you are only halfway there. Unfortunately, you need more than a signature to protect your church from lawsuits that could come from church camp injuries. We are often asked if waivers even help limit liability or are even enforceable—and the answer will surprise you: It depends!

Each state has different requirements for waivers and determines whether waivers are enforceable at all. States may have specific legislation when it comes to enforcing waivers signed on behalf of children. For example, Colorado passed a law in 2003 allowing parents to contract (through a liability waiver) the release of negligence claims on behalf of their children. The state assembly stated:

Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.

      [and;]

Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk.[6] However, some states such as Alabama and Texas limit waiver enforceability to certain types of organizations. Alabama and Texas have case law stating that liability waivers are not enforceable for minors when it comes to for-profit commercial activities.[7] This would seem that nonprofits have free range to use liability waivers, but in Alabama, a minor may disaffirm a contract entered on their behalf.  So even if a waiver is signed under Alabama law, often, a minor could get out of the release, and attempt to hold an entity liable.[8] While it may seem obvious, it is worth noting that waivers signed by minors are generally unenforceable.[9] This is important, especially for high school events where teenagers may attempt to sign their own waivers.

Some states may even limit the types of damages a parent can release from a host entity and willful or gross negligence can almost never be released even it if is clearly stated in bold.

Side Note: Including a statement in your liability waivers stating that the parent is responsible for all medical costs for treating an injury occurring at the event, and any emergency transportation involved in moving the participant, may prevent a parent from seeking remuneration for an injury that is not the fault of the entity.

Work with your church attorney in crafting a waiver that is enforceable in your state, and the state the event is held in, and ask questions to make sure you understand how far a wavier can go in protecting your organization and its employees and volunteers.

Once you understand how a waiver can protect an organization and its people, it is important to make sure the waiver has the elements necessary to be enforceable as intended. The biggest mistake we see are waivers that are far too broad in their description of the risk, or release of liability. Often, we see waivers that simply read:

“Participant waives all liability from any and all activities hosted by Church and agrees to indemnify the Church from any and all liability associated with Participant’s participation in Church activities.”

This release would be unenforceable on two counts: (1) no release can cover willful or grossly negligent behavior; and (2) it does not adequately and specifically identify the risks.

In the now famous Munn v. Hotchkiss School case,[10] a fifteen-year-old student was bitten by a tick in China. She contracted encephalitis and was left unable to speak. The school was held liable because it did not advise the parents and the minor of the risk of contracting disease from insects. This case demonstrates a growing trend in courts requiring greater specificity as to the risks associated with youth activities. Because of this trend, churches should be keenly aware that one-size doesn’t fit all when it comes to waivers and many waivers must be tailored to specific events, outline certain activities and their unique risks. For example, if a church is organizing a camping trip, specific risks may include insect induced injuries, diseases, or allergic reactions; exposure to extreme weather; or, drowning during water activities.

Waivers are useful for churches and ministries and properly drafting and executing a waiver can lead to substantial protection for an organization. Poor drafting and a lack of detail can render a waiver worthless. Take time before the summer starts to review your waivers with experienced legal counsel and make sure they are not only up-to-date but executed properly and applicable to the events your church is holding.

Enjoy your summer and be safe!

[1] 15 U.S.C. § 7001(a)(1).

[2] UETA §5(b) (1999), available at http://www.uniformlaws.org/shared/docs/electronic%20transactions/ueta_final_99.pdf.

[3] Id.§ 8(a), (c) (emphasis added).

[4] Id.§ 9(a), (b) (emphasis added).

[5] See id.§ 2. cmt. 11 (“Security procedure”).

[6] Colo. Rev. Stat. § 13-22-107(1)(a)(III)-(IV) (emphasis added).

[7] 8 Fed. R. Serv. 3d (Callaghan) 182; az v. Life Time Fitness, Inc., 210 U.S. Dist.

[8] Thodev. Monster Mountain, LLC, 754 F. Supp. 2d. 1323, 1328 (M.D. Ala. 2010).

[9] Mavreshkov. Resorts USA, Inc.. No. 06-4403, at 9-11 (3d Cir. Nov. 6, 2008) (slip op.) (non-precedential).

[10] Munn v. Hotchkiss School, No. 14-2410-cv, at 8-24 (2d Cir. Aug. 3, 2015) (slip op.).

2018-04-06T21:45:18+00:00 By |Legal|

About the Author:

David Middlebrook
David Middlebrook is the Founding Shareholder, Middlebrook & Goodspeed, PLLC (www.thechurchlawyers.com) which is a full service, national law firm that focuses on all of the unique legal needs of churches and ministries. David is licensed to practice law in Texas, Colorado and the District of Columbia and his practice emphasis is focused on religious nonprofit organizations. His clients include all types of charitable, religious and educational organizations. Many nonprofit organizations retain David as general counsel; others use his services as special nonprofit corporate counsel. David graduated with honors with a B.S. in Business Management in 1985 and earned his Juris Doctor in 1989 from Southern Methodist University. David has authored and published numerous articles on nonprofit topics. He is the author of The Guardian System, a comprehensive system for the prevention of child abuse within an organization, for which he was awarded a 2001 Evangelical Christian Publishers Association Gold Medallion book award in recognition of excellence in evangelical Christian literature. He co-authored Nonprofit Law for Religious Organizations: Essential Questions and Answers, which is a response to the need for guidance, direction, and clarification of legal and tax laws affecting churches and other religious organizations.