There are steps that both organizations and volunteers themselves can take to limit their potential liability.
Everything we do has some risk attached to it and if organizations and volunteers were unwilling to take any risk they would not be able to do anything. However, there are steps that organizations and volunteers can take to reduce the risks involved in a particular activity.
Consciously reviewing the risks and looking at ways to minimize them can reduce the potential for harm and in turn the potential liability of the volunteers and the organization involved. Looking at whether an activity involves the potential for serious harm and how likely that harm is can help volunteers and organizations weigh the costs and benefits of the activity.
Volunteers can always refuse to participate in activity that they think is too risky. They can also discuss their concerns with the organization and see if any changes can be made to reduce the risk. For example, if a trip to a pool with kids is planned and the volunteer does not think there will be an adequate number of supervisors they could ask the organization to provide more supervisors.
A waiver is never a guarantee that a participant cannot sue and organizations should always seek legal advice if they want to use a waiver to limit liability.
Organizations can use waivers to reduce the risk of being sued if someone is harmed. There are a number of things courts will consider when determining if the fact that the person signed the waiver prevents them from suing for negligence.
The person must have signed the waiver and known what they were signing. For this reason it is important that waivers be written in plain language that is easily understood.
If a reasonable person would not think that the waiver would prevent them from suing the person presenting the waiver must have taken reasonable steps to bring this to their attention. This can be done, for example, by giving the person a verbal explanation or by bolding or highlighting certain words in the waiver.
Waivers must also clearly state risks being excluded. For example risks such as loss of property, property damage, bodily injury or death should all be specifically mentioned if they are going to be excluded.
Waivers must be worded so that they apply to the conduct that caused the injury. For example, a waiver could specify that a participant cannot sue for negligence on the part of the organization or anyone associated with the organization.
Waivers must also cover the particular activity that caused the injury. For example, a waiver could cover a particular trip. If the injury did not happen during the trip the waiver could not be used to limit liability.
A disclaimer, unlike a waiver, does not ask the participant to agree not to sue for certain losses. Disclaimers provide information to participants. The fact that the participant has this information can affect whether the participant can sue the organization for negligence.
For example, a participant that has been warned that food may contain peanut products may be expected to not eat the food if they have a serious allergy. Disclaimers can also be used when giving advice or information to alert the participant that the advice may not be accurate, complete or up-to-date.
Having parents’ consent in writing to an activity can protect volunteers and organizations from being sued simply for allowing the child to participate in the activity. Parents, however, cannot consent to negligent treatment of their children. If a child is injured by negligence a consent form will likely not prevent a negligence claim.
Following standard practices can help to show that reasonable care has been taken. However, just because it is commonly done does not necessarily mean that reasonable care has been taken. On the other hand, not following standard practice can be evidence that reasonable care was not taken.
Organizations may want to have insurance to protect the assets of the organization from a potential law suit based on their negligence or the negligence of a volunteer. They can also choose to insure their volunteers against negligence claims. This may not be necessary to protect volunteers. For example, volunteer directors of a non-profit cannot be sued for negligence if they act in good faith and within the scope of their authority.
Volunteers may be covered by their own vehicle insurance or home insurance in some cases. For example, standard vehicle insurance protects owners who injure others or their property but only up to a monetary limit. Volunteers may want to consider additional coverage and organizations may want to cover the cost of this to ensure that volunteers are adequately covered.
Organizations may want to consider insurance to cover volunteers who are injured while volunteering. Volunteers will not generally be eligible for Workers’ Compensation. This could leave an injured volunteer out-of-work without any compensation. Although in some situations they may qualify for Employment Insurance Sickness Benefits.
PLEA can provide you with information to help you understand many legal matters you, a family member or friend may be facing.