Working Through the Maze of Liability Shields

"Risk management is not just looking for trouble, it's looking for solutions," states Tremper and Kostin (1993, p. 4). They continued, "the risk management process provides a systematic method of responding to the dangers of an organization's operations (p. 5)."

Risk management literature clearly identifies five stages of analyzing risk associated with various programming efforts. These stages can be applied by Extension professionals when developing and conducting activities for youth clientele. These include: (a) identifying the risk associated with the event or situation; (b) assessing risk for severity and frequency; (c) evaluating strategies to control or eliminate risk (for example, avoiding, modifying, transferring, and/or retaining); (d) implementing the strategy(ies) to deal with identified risks; and (e) reviewing and revising periodically and as needed (Seidman & Patterson, 1996; Tremper & Kostin, 1993; Minnesota Office on Volunteer Services, 1992).

Liability shields, often utilized as a strategy for managing risk associated with youth programming efforts, are often misused and not fully understood. The Nonprofit Risk Management Center (1996) points out, "Contrary to the popular misconception, liability shields can be worth more than the paper they are written on (p. 1)." They believe that liability shields are contracts between the organization and a participant.

However, in the conduct of youth programming, a liability shield becomes a legally non-binding contract between the organization and the parent/guardian of the youth participant; especially when the legal rights of youth are attempted to be signed away. Four common types of liability shields include: permission slips, informed consent forms, waivers and releases, and indemnification agreements.

Parental permission slips clearly describe the activity in which a youth will be involved. An informed consent form describes, in greater detail, the activity and specific risks to the young person associated with the activity. Seidman and Patterson (1996, p. 30) stated, "They (forms) do not absolve you of any liability, but they do provide a form of protection. A permission slip, signed by a parent or guardian, indicates the parent's knowledge of and consent to his or her child participating in the activity."

The Nonprofit Risk Management Center (1997, p. 5) adds, "a parent who is aware of the nature of his or her child's activities and whereabouts and who is more involved in the decision making process may be less inclined to shift the entire blame to your organization in the event of an accident." Moreover, a consent form or a permission slip can undercut or block a lawsuit based on a claim that Extension somehow infringed upon the parent's authority, control, or custody over his or her child (Seidman & Patterson, 1996; Nonprofit Risk Management Center, 1996; Tremper & Kostin, 1993).

Waivers or releases are often used by Extension professionals in the conduct of youth activities. "In these documents, the participant signs away his or her right to sue the organization in the event of injury or damage" explains Seidman and Patterson (1996, p. 28). When involving youth in activities, Extension professionals attempt to have the child's parent or guardian sign the release or waiver. Seidman and Patterson continue, "A parent's signature on a waiver is of limited value. Most jurisdictions will not permit a parent to waive the rights of his or her children."

In most cases an organization can not be excused for negligent conduct or when a duty is owed to a minor. As with the permission slip or an informed consent form, activities and their risks must be identified. Regardless of their validity, waivers can: (a) encourage all parties to recognize and discuss the risks; (b) take appropriate precautions; and (c ) be used in a lawsuit as evidence of your attempt to inform the individuals of the risks (Ellis, Weisbord, & Noyes, 1994; Tremper and Kostin 1993).

An individual or organization signing an indemnification agreement with your organization agrees to assume financial responsibility for claims brought by others against your organization (Seidman and Patterson, 1996). In the case of an adult signing an indemnification agreement for their child to participate in an activity, they are agreeing to accept any loss that may be incurred; however, as stated earlier, most courts will not allow the parents or guardians to sign away their children's rights. "Indemnification agreements are a useful tool in your programming arrangements with other organizations," states Seidman and Patterson (1996, p. 30).

Overall, several common elements are associated with liability shields (Seidman & Patterson, 1996; Ellis, Weisbord, & Noyes, 1994; Tremper & Kostin, 1993). These include: (a) the person signing must be competent and not a minor; (b) the person signing must be given sufficient information to understand the nature and scope of the activity; (c ) the activity must be voluntary with something of value being exchanged; (d) the liability shields do not shift responsibility for criminal activity, willful misconduct, or gross negligence; (e) the transfer of risk back must not be against public policy as determined by a court of law; (f) the surrendered legal rights must be clearly identified; and (g) do not protect the organization from litigation.

Implementing liability shields is an essential component of an Extension risk management plan. Extension educators need to consider the following items as they relate to liability shields and programs involving youth clientele:

(1) Extension professionals must incorporate the identification of risks as a part of the on-going planning and conducting of youth activities. This critical step must be accomplished before developing any type of liability shield. Furthermore, Extension must recognize that if a risk is omitted, the parent or guardian may sue and say, "If I had known that, I wouldn't have signed." Specific risks can be effectively dealt with when identified in advance and addressed in the program's risk management plan.

(2) Extension professionals conducting youth programs should utilize the permission slip and/or an informed consent form as a basic component of an activity planning process. Even though the organization is not asking anyone to sign away any rights, it is an extremely valuable tool that could be used in your defense during litigation.

(3) Since most youth activities involve participants under the legal age of 18, communication with the parents or guardians is essential. Extension professionals may conduct parent or guardian orientations/information meetings to distribute liability shields for a specific activity. This allows the staff member to directly address parental concerns about specific activities/risks identified.

The orientation/information meeting also allows staff to describe the other forms of modifying and transferring risk that will be in place for the activity (i.e., volunteer screening process, orientation and training the volunteers or other staff that will be conducting the activity, insurance covering the activity, and/or medical care and treatment that will be available). If a face-to-face meeting is not possible, Extension staff should provide an accurate account of the preceding items in writing to the parent or guardian. Communication can be a valuable tool in avoiding litigation.

(4) Generally, one form does not fit all; the best liability shields are the most specific (Ellis, Weisbord, & Noyes, 1994). The validity of any liability shield is directly associated how closely the form you are asking a parent or guardian to sign describes the specific Extension activity.

(5) Work closely with legal counsel in developing and selecting various liability shields. Shields that are legally correct will increase the likelihood that your investment of time and effort in utilizing liability shields will be of value if there is an accident.

Properly developed and utilized liability shields can be worth more than the paper they are written on and a beneficial component of an Extension risk management plan. However, liability shields are not a substitute for poor program planning or implementation. Be sure all volunteers and other staff are adequately screened and selected, properly oriented and trained to carry out their responsibilities, equipment is in good working condition, and proper policies and procedures are in placed and enforced.

Furthermore, orientation and basic training (if needed) should be provided to participants before taking part in the activity. Remember youths' various stages of physical and emotional development and how that may impact the activity being conducted. Failure to address these items may lead to negligence and undermine the value of any liability shield.

Ellis, S.J., Weisbord, A., & Noyes, K.H. (1994). Children as volunteers. Philadelphia: Energize.

Nonprofit Risk Management Center (1996). Please release me. Community Risk Management & Insurance newsletter. 5 (2), May. Washington, D.C.

Minnesota Office on Volunteer Services (1992). How to control liability and risk in volunteer programs. Minneapolis: Minnesota Department of Human Services.

Seidman, A. & Patterson, J. (1996). Kidding around? Be serious! Washington, D.C.: Nonprofit Risk Management Center.

Tremper, C. & Kostin, G. (1993). No surprises: controlling risks in volunteer programs. Washington, D.C.: Nonprofit Risk Management Center.