Are Liability Waivers and Hold Harmless Agreements Enforceable if I Suffer an Injury?
Many Businesses and Sports Organizations Ask Participants to Sign a Release of Liability Waiver Agreeing Not to Sue for Injuries, Loss, or Damages. But You May Be Able to Overcome this Hold Harmless Agreement and Recover Money for the Harm.
What started as a fun recreational event for you and your family has turned tragic, leaving you with a catastrophic injury requiring medical treatment.
You know the defendant’s conduct caused your damages. But you signed a liability waiver holding the defendant harmless and agreeing not to sue if the defendant’s negligence causes injury, loss, or harm. And the insurance claims adjuster denied your claim, saying the assumption of risk doctrine bars any recovery.
You have two choices:
- Give up your claim, or
- Look for ways to defeat the liability waiver
We wrote this article for those who want to overcome the defendant’s affirmative defense that you voluntarily assumed the risk of injury and collect all the personal injury damages you are entitled to under the law. You may still have a personal injury case under tort law.
Keep reading to learn about pre-injury releases and whether courts enforce these signed hold-harmless agreements.
Then call one of Virginia’s best personal injury lawyers to start on the path to recovery: (804) 251-1620 or (757) 810-5614. See why past clients and colleagues regularly vote as top attorneys in workers compensation, car accident, traumatic brain injury (TBI), and construction accident law. And how we scare claims adjusters into increasing insurance reserves and offering better settlements.
What is a Liability Waiver?
A liability waiver is a written legal agreement (a contract) that you sign before participating in a specific activity that limits your right to sue a person, company, or organization for injuries or damages suffered during your participation.
These documents have many names, such as the following:
- Disclaimer
- Exculpatory Clauses
- General Liability Waiver
- Hold Harmless Agreement
- Indemnification Agreement
- Liability Waiver Form
- Pre-Accident Releases
- Pre-Injury Release Form
- Release of Liability
- Waiver of Liability Statement
But they all have one thing in common – removing legal liability for the person or business responsible for running the activity you are about to participate in and dissuading you from filing a liability claim against their insurance.
Chances are good that many businesses have asked you to sign a liability waiver for you or your child. Indeed, some general liability insurers demand that certain companies in specific industries use liability waivers.
Companies in high-risk industries, including the following, commonly use these pre-accident releases:
- Amusement parks
- Automobile or Motorcycle racing organizations
- Childcare centers
- Concerts
- Gyms (including health and fitness clubs)
- Outdoor events (including riding jet skis at the beach, going on a cruise, or participating in marathons, triathlons, walks, and bicycle races)
- Recreational sports (including adult and youth sports leagues)
- School events (including field trips and extracurricular activities)
- Sporting events with spectators
And you were likely asked to sign liability waivers when participating in low-risk activities (such as getting a haircut) during the COVID pandemic.
Sample Liability Waiver Language
Here is an example of the types of terms found in pre-injury releases of liability:
As consideration for participating in this program and activity, I agree to release, acquit, forever discharge, hold harmless, and waive all actions, causes of action, claims, and lawsuits I may have against the business owner (including its affiliates, agents, employees, officers, officials, partners, representatives, and sponsors) for bodily injuries, property damage, or death resulting from my participation in this activity.
Are Liability Waivers Enforceable?
The enforceability of a liability release depends on the tort law in the state with jurisdiction over your personal injury case. State law governs – and varies widely.
Do Virginia Courts Enforce Pre-Injury Liability Waivers?
Many states accept that a person may expressly and contractually assume the risk of injury and give up the right to recover damages against a defendant for injury or loss. And courts in these states will find a pre-accident release from liability valid and enforceable, barring your personal injury lawsuit unless you fit one of the exceptions.
But not Virginia.
In Hiett v. Lake Barcroft Community Association, Inc., 418 S.E.2d 894 (1992), the Virginia Supreme Court held that a pre-injury release provision covering bodily injury and death and signed by the injured person (the plaintiff in the lawsuit) violates public policy and is void.
The court explained its rationale by summarizing past decisions dating to 1890. And it said, “the law in Virginia has been settled that an agreement entered into prior to any injury, releasing a tortfeasor from liability for negligence resulting in personal injury, is void because it violates public policy.”
Specifically, a pre-accident liability waiver violates public policy because:
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.
In other words, defendants must take precautions to keep their facility, event, equipment, or activity safe. Virginia courts will not permit them to rely on a pre-accident liability waiver to escape this legal duty.
Exceptions to Virginia’s Rule on Enforcing Pre-Accident Waivers of Liability
Although case law on contractual pre-injury release provisions concerning future negligence favors plaintiffs, courts still uphold liability waivers in some situations. This is unsurprising, as “the law looks with favor upon the making of contracts between competent parties upon valid consideration and for lawful purposes.”
For example:
The Virginia Supreme Court has enforced property damage waivers.
And it has distinguished pre-injury release provisions for personal injury from indemnity contracts that pre-determine how parties will incur potential losses during the relationship.
In Estes Express Lines v. Chopper Express, 273 Va. 358 (Va. 2007), the court upheld indemnity provisions between two businesses because “indemnity provisions do not bar or even diminish an injured party’s ability to recover from a tortfeasor.”
And in another case, the court found an indemnification agreement between two contractors valid because negligence was not the predicate for invoking the contract.
You may, therefore, have to repay the owner or operator of the event if you cause harm to yourself, the property, or others.
Other Ways the Defendant Can Use the Liability Release Against You
You can use Virginia’s case law on liability waivers to defeat an express assumption of the risk defense.
But the defendant may use the hold harmless agreement another way: to show an implied assumption of risk.
For example, the defendant could argue that you should have known the activity was inherently dangerous and could cause harm because you had to sign a liability waiver. And then you voluntarily exposed yourself to this risk.
We recommend using a motion in limine to keep this contract out of evidence and away from the jury. You want to prevent the insurer from putting this liability waiver in front of jurors who think physical injuries are a normal part of life and will take little convincing to use the pre-injury release to vote against you.
Enforceability of Pre-Injury Releases from Liability in Other States
Most states will find pre-injury liability waivers valid and enforceable unless you prove one of the exceptions.
Virginia, therefore, is in the minority when it comes to enforcing hold-harmless agreements in personal injury cases.
Ways to Overcome Liability Waivers When the Case Law Indicates They Are Enforceable
Here are ways to defeat a hold harmless agreement so you can recover money in your personal injury lawsuit:
First, review the waiver contract to see if all the potential defendants are listed and if you signed the paper.
The liability release is void if you did not execute it.
And you may have a negligence claim against a person or business not covered by the contract.
Second, review state laws and regulations to see if any law permits the business from enforcing a liability waiver due to the industry it is in or if the release becomes void if the defendant accepts payment from you.
Third, reread the contract to see if it mentions negligence or uses unambiguous language. You may argue that you did not understand what you were waiving or what risk you voluntarily assumed.
Fourth, analyze the defendant’s acts and omissions to determine if you have a claim for gross negligence (wanton, willful, or reckless behavior) or an intentional tort (assault or battery) Courts have held that you cannot give up the right to sue based on these causes of action.
Fifth, evaluate if the risk that caused harm was an inherent and expected risk of participating. For example, you may have signed a liability waiver giving up the right to sue a baseball team if a foul ball strikes you. But courts may find the hold harmless agreement did not cover a sign falling from the upper decks and causing a spinal cord injury.
Sixth, determine if you could give consent to the activity. For example, a court may find the liability waiver void if you signed when you were under 18.
Seventh, argue that the liability release is against public policy. Courts will nullify liability waivers if the release concerns an activity or service affecting the public interest. For example, you can fight against medical provider contracts asking you to release them from liability for negligence during surgery as implicating the general welfare.
Eighth, analyze whether the event’s conditions changed between when you signed the liability release and when you participated. Perhaps the event owner knew a property condition had developed that increased the risk of harm and would have changed your mind about participating.
Get Help Challenging a Liability Waiver So You Can Recover Damages for Personal Injury
Insurance companies use all the defenses to tort claims they can. And raising an assumption of risk defense based on a signed liability release is a favorite of defense attorneys.
But depending on what state has jurisdiction over your claim and the specific facts, you may still recover monetary damages after you sign a liability waiver.
If you are ready to fight back and defeat the liability waiver to get a settlement or judgment to make you whole, call us today at 804-251-1620 or 757-810-5614.
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