In Virginia, have you given up your right to sue when you have signed a waiver?

January 11, 2010

The waiver. Everyone knows it. We've all signed one. If you want to engage in an activity (little league, summer camp, high school sports or triathlon, for example), chances are someone is going to want you to sign away all your rights.

In 1890, the Virginia Supreme Court addressed the issue of waivers in Johnson's Adm'x v. Richmond and Danville R.R. Co., 86 Va. 975 (1890) and ruled that such waivers were not valid. In quintessential 19th century language, the Court reasoned that "to 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.

This reasoning still reigns in Virginia - as evidenced by a 1992 case where the waiver of liability that a participant in a triathlon signed was voided as against public policy and the participant was allowed to pursue his case for negligence resulting in his quadriplegia.

For those of you wishing to execute such waivers, the Virginia Supreme Court carved an important exception in Estes Express Lines, Inc. v. Chopper Express, Inc., 273 Va. 358 (2007). In that case, Estes Express leased several trucks to Chopper Express and had Chopper Express enter into an agreement where Chopper agreed to indemnify Estes Express for any loss that may occur. One of Chopper Express's employees was injured, sued Estes Express for personal injury due to Estes Express's negligence, and ultimately settled with Estes Express. Estes Express sought reimbursement from Chopper based on the indemnity provision.

The Virginia Supreme Court found the indemnity provision did not violate public policy and was valid. In so ruling the Court found that such indemnity provisions do not involve the same public policy concerns as when a participant signs a waiver because they do not bar the injured party from recovery and that they were unlikely to lead to a party to fail to exercise ordinary care.

In conclusion, if you are asked to sign a waiver of liability for personal injuries the law in Virginia will hold such a waiver invalid. Parties, however, can enter into agreements where the amount of liability for negligence can be apportioned between them. As long as the injured party has a recovery the agreements are valid. One final exception is that a waiver for property damage is not against public policy and absent any other problems will be held enforceable in Virginia.

Zachary Desmond