Liability waivers are everywhere. If you have ever signed yourself or your child up for any type of recreational activity, sports team, physical fitness program, or outdoor event, you have probably been asked to sign a liability waiver. Liability waivers are usually located on the registration paperwork, sign-in sheet, or entrance ticket for the activity, and are known by many names, such as:
- Liability Waiver
- Waiver
- Release
- Disclaimer
- Indemnification Agreement
- Hold Harmless Agreement
- Assumption of Risk
- Exculpatory Agreement
Regardless of what they are called, most liability waivers require the participant (or the participant’s parent) to agree that they will not sue the sponsor or provider of the program, activity, or event if they or their child are injured while participating in the activity even if the sponsor or provider is at fault.
Why most pre-injury liability waivers are not enforceable in VA
Although they are enforceable in many states, most pre-injury liability waivers are not enforceable in Virginia. Why? Because they are not fair to the participant. Pre-injury liability waivers are signed before the program, activity, or event begins, at a time when participants do not know whether the program, facility or equipment will be safe; whether the provider will comply with applicable statutes, regulations, and safety standards; or whether the provider will take appropriate steps to ensure their safety. Also, because pre-injury liability waivers require participants to voluntary waive their legal rights to be compensated for their injuries regardless of whether the provider is at fault, providers who know that they are shielded from liability might not be motivated to exercise ordinary care to prevent harm to program participants.[1]
For good reason, the Supreme Court of Virginia has stated that it will not enforce pre-injury liability waivers because they violate the public policy of the Commonwealth.[2]
So are pre-injury liability waivers meaningless? Not necessarily. The Virginia Supreme Court has upheld agreements that require a participant to indemnify (i.e., reimburse) the provider of the program, activity or event if the participant causes his or her own injuries, or if the participant injures someone else.[3] In these cases, if the provider gets sued for personal injuries that were caused by the participant, the court could order the participant to reimburse the provider’s legal costs and expenses.
Liability waivers can also be used as evidence that the participant knew and understood the dangers of participating in the activity, but chose to do it anyway. In Virginia, a defendant can argue that it is not liable for a plaintiff’s injuries if the plaintiff “assumed the risk” of being injured. In order to establish the assumption of risk defense, the defendant must prove that the plaintiff: (1) fully appreciated the nature and extent of the risk; and (2) voluntarily incurred the risk.[4] Therefore, if the liability waiver describes the dangers and risks of participating in the activity and the participant acknowledges these risks by signing the form, the liability waiver could be used as evidence against the plaintiff.
Similarly, liability waivers might be enforceable if the injured person knowingly and voluntarily participates in an “inherently dangerous” activity, such as race car driving. In 2001, the Circuit Court of Wise County upheld a prospective liability waiver against a race car driver who was injured when he drove his race car into a guardrail post.[5] The court observed that racing cars is an inherently dangerous activity and expressed concern that organizers will not sponsor these types of sporting events without liability waivers. The court noted that because race car drivers customarily conduct their own inspections of the race track, race car drivers might not need the same level of protection as the general public.
What is the bottom line?
If you are presented with a pre-injury liability waiver, you could refuse to sign it. Of course, if you refuse to sign it, you (or your child) might not be permitted to participate in the program, activity or event. If you sign the form, you can be comforted that – as of the date that this article was written – the Virginia Supreme Court will not prohibit an injured person from suing the provider of a program, activity, or event if the injuries were caused by the providers’ negligence. However, the signed pre-injury liability waiver can be used as evidence that the provider informed the participant about the risks of participating in the program, and that the participant understood and voluntarily accepted those risks.
If you or someone that you know has been injured, contact Allen & Allen for a free consultation. You might be entitled to compensation, even if you signed a liability waiver.
[1] Estes Express Lines, Inc. v. Chopper Express, Inc., 273 Va. 358, 641 S.E.2d 476 (2007).
[2] Hiett v. Lake Barcroft Community Ass’n, 244 Va. 191, 194-195, 418 S.E.2d 894, 895-896 (1992) (citing Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 978, 11 S.E. 829, 830 (1890) (“[T]o hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it, and contracts against public policy are void.”)
[3] Estes Express Lines, Inc., 273 Va. at 365-366, 641 S.E.2d at 479.
[4] McDowall & Wood, Inc. v. Kilby, 211 Va. 476, 478,178 S.E.2d 497, 499 (1971) (citing Davis v. Sykes, 202 Va. 952, 954, 121 S.E.2d 513, 514 (1961); Shook v. Barksdale, 206 Va. 45, 48, 141 S.E.2d 738, 741 (1965)).
[5] Elswick v. Lonesome Pine Int’l Raceway, Inc., 54 Va. Cir. 368 (Wise 2001).
