Pre-Injury Liability Waivers Are Not Always Valid or Enforceable in Virginia
You sign liability waivers all the time for activities, events, and programs. If your child is involved in sports, you are even more familiar with them. Did you know that in Virginia liability waivers are often invalid and unenforceable for personal injuries? Jeff Brooke, an experienced personal injury lawyer in Virginia, explains.
What Is a Liability Waiver?
A liability waiver can be called a lot of different things. In addition to being called a liability waiver, the document name might be:
- Assumption of risk
Whatever the document is called, you are required to sign it by the sponsor of the activity or event. The waiver purports to relieve the sponsors of the activity from all legal liability if you are injured during the activity or event. It states that you give up your right to sue for injuries and will not be able to hold the sponsor responsible.
Validity and Enforceability of Liability Waivers in Virginia
In some states, liability waivers for personal injury are valid and enforceable. In Virginia, in cases involving personal injury, they often are not valid and do not prevent you from holding the sponsor legally liable or keep you from suing to recover damages.
The Virginia law is not statutory but has been established by state courts. It dates back to as long ago as the late 1800s. The most recent well-known case was decided in 1992 by the Virginia Supreme Court: A tri-athlete signed a liability waiver before competing in a triathlon in Fairfax County. When he dove into shallow water in Lake Barcroft, he struck his head on a fixed object. The catastrophic injuries left him a quadriplegic. The Supreme Court determined that the liability waiver — in attempting to relieve the event organizers of legal liability — was contrary to public policy and did not prevent the victim from filing the lawsuit. The case affirmed legal principles enunciated by Virginia courts in many previous cases.
Virginia provides powerful protection for injury victims who sign documents that include liability waivers. With a few narrow exceptions, you do not give up your right to file a lawsuit if you’ve signed a liability waiver in the state. Event and activity sponsors may be legally liable if you are injured, especially if the sponsor’s negligence causes your injuries. So, if you are required to sign a waiver for yourself or for your child, it's important to know that the waiver may not be valid if injuries do occur.
However, each case will be decided by Virginia courts based on the facts of the individual case. If you are injured in a situation where you have signed a waiver, the only way to know with certainty what your rights are is to talk with a personal injury lawyer in Virginia. There are some specific exceptions that may result in the liability waiver being enforceable. Only an attorney will be able to analyze your specific situation and determine your rights.
Under Virginia court cases, unenforceability of injury waivers does not extend to situations in which the event participant causes his or her own injuries. Similarly, the courts will not protect a participant who injures someone else.
In addition, there is a legal principle that may be involved in a liability waiver case called assumption of risk. For assumption of risk to apply, the participant must fully be aware of, understand, and appreciate the nature and extent of the risks. The participant must also voluntarily undertake the activity knowing the risks. So, if an event sponsor can demonstrate that the waiver disclosed all the dangers and risks, and that the participant knowingly acknowledged and accepted the risks, the sponsor can use the waiver as evidence against the participant in the event of a lawsuit.
Virginia courts have recognized that a similar situation exists when a person undertakes an inherently dangerous activity. If the injured person knowingly and voluntarily participated in such an activity, a liability waiver might be enforceable. Examples of inherently dangerous activities include race car driving and some highly active sports like skiing.
Indemnity clauses or agreements sometimes can effectively amount to a liability waiver. In an indemnity provision, the parties agree to apportion liability between or themselves in a certain way. An indemnity clause will not prevent someone from suing for damages for a catastrophic injury, but sometimes an indemnity clause can require an injured person to compensate — or indemnify — the responsible party for losses. The end result can be the same as a liability waiver. As is the case with liability waivers, only a knowledgeable attorney will be able to advise you on the effect of an indemnification provision.
Finally, there are some activities and events in Virginia that have specific statutes addressing liability and waiver issues. One example is The Virginia Equine Activity Liability Act, which provides some liability protections for those who are involved in certain activities involving horses. It does not provide blanket protection, however. Some of the statutory protections do not require signing a liability waiver, and some do.
When To Talk with a Personal Injury Lawyer in Virginia
If you or a loved one were seriously injured in an activity for which you signed a liability waiver, you should not assume that you cannot recover or sue for your injuries. The only way to know what rights you have is to talk with a knowledgeable attorney. The Jeff Brooke Team helps personal injury victims and their families recover the compensation to which they are entitled. Contact us by phone at (757) 337-3580 or by using our online contact form.
Jeff Brooke is a personal injury attorney devoted to helping individuals who have suffered serious and catastrophic injuries or lost a loved one as a result of someone else’s negligent and careless actions. The Jeff Brooke Team serves all of southeastern Virginia. The firm serves clients in the Greater Tidewater and Greater Hampton Roads areas, including in Virginia Beach, Norfolk, Portsmouth, Chesapeake, and Chesterfield. The Jeff Brooke Team also handles cases in northeastern North Carolina, including the Outer Banks.