Falls From Ladders, Dog Bites and Overly Affectionate Peers: Can a Pre-Injury Waiver of Liability Help Protect Your Organization From Future Claims?

June 12, 2014
Carmel Cosgrave and Betsy Ballek
SmithAmundsen Health Care Alert

Practice Areas


Whether you are a religious organization, school, health care organization or dog shelter, it’s a good bet that you rely on a reliable cadre of volunteers to help run your organization. The U.S. Bureau of Labor Statistics reported that in 2013, as many as 62 million people reported at least some volunteer activity in the prior year. But what if a volunteer is injured during the course of the duties you have assigned to them?

It may be surprising to learn that volunteers in Illinois have brought suit against the organization for which they volunteer. For example, a volunteer who fell from a ladder while installing ceiling fans on church property sued the church and its pastor alleging a statutory violation. Coates v. W.W. Babcock Co., 203 Ill.App.3d 165 (1st Dist. 1990). Finding evidence that the church was in charge of the volunteer’s activities and that the organization failed to comply with certain statutory requirements, the appellate court remanded the case for trial. In a recent 2014 Illinois appellate case, a volunteer-plaintiff sued an organization for the actions of another volunteer under a theory of vicarious liability. The appellate court overturned the jury’s verdict and held that the volunteer-defendant was acting outside the scope of his duties when he hugged, picked up and then dropped his co-volunteer. The organization was successful in defending against allegations of vicarious liability, as it had policies for volunteers that did not include the activity at issue, and they provided evidence that his actions were not “of the kind” that the volunteer-defendant was assigned to perform. Parks v. Brinkman and the Lakeside Legacy Foundation, 2014 Il.App.3d 130633 (2nd Dist. 2014).

One method to protect your organization from such suits may be in the form of a waiver or release of liability form. While not favored under Illinois law and absent certain exceptions, waivers signed by adults on their own behalf have been found to be enforceable by Illinois courts. To determine enforceability, a spate of Illinois appellate court cases looked for clear, explicit language which put the signer on notice as to reasonably foreseeable dangers of the activity and evidence of assumption of risk by the signer. The court in Garrison v. Combined Fitness outlined that such waivers are enforceable, absent fraud or willful and wanton negligence, unless there is: substantial disparity between the parties; a violation of public policy; or a special relationship between the parties (e.g. employer/employee) which creates an imbalance in bargaining power. 201 Ill.App.3d 581 (1st Dist. 1990).

A Word About Minors

Issues related to minors represent an important caveat to the analysis of waiver rules in Illinois courts. A court has broad discretion to protect a minor’s interests and minors involved in litigation, are, as a matter of public policy, considered wards of the court. The court in Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141 (2nd Dist. 1994) held that because the child has ward-of-the-court status, and judicial approval was required for a parent to resolve a child’s cause of action after an injury, a parent could not logically waive their minor child’s future cause of action through the use of a waiver or release signed by a parent. A minor, generally, may not sign such a release on their own behalf. In short, pre-injury waivers for minors are strongly disfavored in Illinois.

In summary, the issue of adult waivers of liability is clearly a balance between protection for your organization, informed assumption of risk by your volunteers and the creation of a waiver that is not so “legalese” as to frighten off potential volunteers. For tips on creating waiver language, organizations might: look to the Illinois cases which recognized valid waivers include clear, explicit language and bold or highlight to ensure that the adult volunteer is on notice regarding potential risks of the activity. Finally, based on the recent Parks decision, having written policies and instruction for volunteers to remain within the scope of the activities assigned may also be helpful.