I was recently asked about liability waivers from a homeschool leader:
As we draw up a liability waiver, do we need to have an attorney in our state look at it to make sure it is okay, or are they generally pretty generic forms? It seems those I have filled out in the past were basically the same, with just a few minor changes to make it appropriate for the group and/or event. Judy K. (Tennessee)
I wasn’t sure how to answer Judy, so I turned to Christine Field, an homeschool parent and attorney with Homeschool Legal Advantage:
You don’t think of homeschool groups as engaging in potentially dangerous activity, so the whole idea of waivers and liability insurance may seem unnecessary. Yet many groups are increasingly called upon to obtain liability insurance. The insurer may insist on your group having a release of liability form or a liability waiver.
Many people believe that a signed waiver makes them invulnerable. This is not true. Here are some common misconceptions about liability waivers:
1. If someone signs a waiver, they can’t sue us. This is not true. An injured party can still attack the validity and scope of a waiver.
2. If I have a waiver signed, I send it to the injured party’s lawyer and they won’t sue. Also not true. As a homeschool group, you still need to report the claim to your insurance company along with sending them a copy of the waiver to be used as part of your defense.
3. If I have waivers signed, I don’t need insurance. Definitely not true! In fact, if you have insurance, the insurer will often insist that you obtain waivers or releases from participants.
An enforceable waiver of liability is one which is prepared in accordance with state law, sufficiently describes the risk and is understood by the reader.
Some things to look out for in your releases are as follows:
1. Remember, minors generally cannot release liability. Parents or guardians must sign the release on behalf of the minor.
2. A release can only release from ordinary negligence. In other words, if there is gross negligence or intentional injury, the release will not be effective.
3. The language of the release must be in compliance with the state law and the signer must understand the language of the release. Look for language barriers or other inability to understand.
It is always good to have an attorney licensed in your state take a look at your liability waivers or releases. Doing so provides the best possible protection for your group as well as your directors.
Thank you, Christine, for your reply and insight into the best use of liability waivers for homeschool leaders.
Carol Topp, CPA
Why have a liability waiver? Your article makes it sound like they can’t be enforced, so what is their purpose and what do they protect your group from?
Ask I wrote in the blog post,
The best information on using liability waivers I heard came from TJ Schmidt, an attorney with Home School Legal Defense Association (HSLDA). He explained that waivers may deter people from suing you. A member may think twice about filing a lawsuit because he or she remembered signing a liability waiver. That may be why insurance companies require waivers; they cut down on claims and lawsuits.
Carol Topp, CPA