Whenever we participate in dangerous activities where the possibility of
injury is high, the proprietors make us sign a liability waiver. These
waivers, or releases of liability, usually say something to the effect
of: “I recognize that there are certain dangers associated with
the above described activity and I assume full responsibility for personal
injury to myself and my family members, and hereby release and discharge
(the business) for any injury or loss arising out of my or my family’s
use of the facilities, or presence on the premises whether by the fault
of myself, my family or (the business).” While these documents on
their face seem to say that if we are injured we cannot recover for our
damages, even if it is the fault of the proprietor, you may still have
a valid legal claim against the proprietor if they were negligent.
Do not let these releases stop you from consulting a personal injury lawyer. Only a competent personal injury attorney can tell you whether you have
a valid legal claim that is worth pursuing.
It has long been recognized in the Commonwealth of Virginia that these
releases are invalid. In 1890, the Virginia Supreme Court ruled that these
pre-injury waivers or releases are void as against public policy. The
Court reasoned that “[t]o uphold the [waiver of liability], would
be to hold that it was competent for one party to put the other parties
to the contract at the mercy of its own misconduct, which can never be
lawfully done where an enlightened system of jurisprudence prevails.”
Johnson's Adm'x v. Richmond & D. R. Co., 86 Va. 975, 978 (1890). In a more recent case from 1992, the Virginia
Supreme Court reviewed and reiterated the 1890 ruling and found “that
such provisions for release from liability for personal injury which may
be caused by future acts of negligence are prohibited universally.”
Hiett v. Lake Barcroft Community Ass'n, 244 Va. 191, 195 (1992). In more recent cases the Virginia Supreme Court
has held that indemnification agreements (an agreement that essentially
shifts the cost from one party to another), and property loss releases
Estes Express Lines, Inc. v. Chopper Express, Inc., 273 Va. 358 (2007).
If pre-injury releases are unenforceable in the state of Virginia, why
do the proprietors of these businesses and their attorneys keep having
you sign them? Most likely for two reasons: 1) first, and most importantly,
to have you believe that you have lost the right to pursue your legal
claim. Remember, just because you signed something does not mean it is
enforceable; and 2) Secondly, to provide some evidence that you assumed
the risk of your injury. “Assumption of the risk is venturousness
and has two requirements: the nature and extent of the risk must be fully
appreciated and the risk must be voluntarily incurred.”Amusement Slides Corp. v. Lehmann, 217 Va. 815, 819 (Va. 1977) “The standard to be applied in an assumption
of the risk case is a subjective one, of what the particular plaintiff
in fact sees, knows, understands and appreciates.”
Hoar v. Great E. Resort Mgmt., 256 Va. 374, 390 (1998) While assumption of the risk is a legal doctrine,
it is a factual question that is usually left for the jury to decide.
If you have been injured, regardless of whether you have signed some form
of pre-injury release, contact a competent and experienced personal injury
attorney. Only a competent personal injury attorney can inform you of
your rights and help you seek justice by ensuring that the blameworthy
party is held responsible for their actions.
Contact us today.