Consulting an Attorney
Whenever we participate in dangerous activities where the possibility of injury is high, the proprietors make us sign a liability waiver. Don’t let the fact that you signed a liability waiver stop you from consulting an attorney.
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 are enforceable. 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.