Enforceability Of Waivers Of Prospective Liability

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[author: James V. Irving, Esquire]

People and businesses providing physically risky activities for a fee often attempt to limit their liability by requiring each participant to sign an agreement which purports to absolve the business in advance from claims arising from injury to the participant. Such agreements, known as waivers, releases and exculpatory agreements, are enforceable in most jurisdictions, but not in Virginia.

Business invitees visiting ski slopes and amusement parks are probably familiar with the “Waiver of Liability” forms participants are asked to sign before the fun begins.  Typically they recite the physical risk inherent in the activity, acknowledge having been warned of the danger, and recite that the business owner cannot guarantee their safety. Finally, there is a paragraph, usually in bold print, by which the participant absolves the business owner of any and all liability for any injury that the participant may suffer in the undertaking.

More than 20 years ago, Robert Hiett agreed to participate in the swimming leg of a triathlon sponsored by the Lake Barcroft Community Association in Fairfax County.  As part of the entry process, Hiett signed a required Waiver of Liability form which stated, in part, “I…waive, release and forever discharge any and all rights and claims for damages which I may have or may hereafter accrue to me against the organizers and sponsors… for any and all injuries suffered by me in said event.”

At the start of the swim, Hiett dove into the lake, struck his head on a fixed object in the water and incurred an injury that rendered him a quadriplegic.  Hiett filed suit in the Fairfax Circuit Court, where Judge Thomas Middleton dismissed his claim, ruling that absent fraud, duress, illiteracy or the denial of an opportunity to read the form, the Waiver of Liability agreement was a valid, enforceable contract.

In Hiett v. Lake Barcroft Community Ass’n, the Supreme Court overturned the trial court’s ruling allowing Hiett’s claim to go forward.  Citing a case from 1890 which opined that prospective releases left the releasing party “at the mercy” of the other party’s own negligence, the Court noted that public policy “has long prohibited prospective releases of personal injury damages.”   Subsequent Virginia decisions have affirmed the right of parties to contract to prospectively release claims for property damages as well as indemnification from liability to third parties for such damages. However, the bar against waivers for prospective personal injury damage remains alive in the Commonwealth. While Virginia’s is a minority view, most, if not all states prohibit waivers of liability based on willful or wanton misconduct, gross negligence or intentional acts. Exculpatory agreements may be subject to additional limitations in Virginia and other jurisdictions.  For example, in at least one state, a parent lacks the legal authority to waive his or her minor child’s future causes of action for personal injuries.

In Virginia, many proprietors of physically risky ventures continue to require participants to sign waivers of personal injury claims, perhaps assuming that, enforceable or not, the existence of such an agreement may be a deterrent to a law suit.  These agreements do create an additional hurdle, and they continue to have merit as waivers of other claims—to demonstrate the participant knew and assumed the risk—and because they may become more broadly enforceable if the law changes.

James V. Irving is a Shareholder with Bean, Kinney & Korman, P.C. in Arlington, Virginia, practicing in the areas of corporate and business law and commercial and general litigation. He can be reached at 703.525.4000 or jirving@beankinney.com.