Example From a Signed a Pre-Liability Waiver
This holding has been reaffirmed over the years by the Court. For example, in a more contemporary case from 1992, Hiett v. Lake Barcroft Community Association, a man was paralyzed during a triathlon when he dove into a lake and struck his head on a hard object that was submerged just below the surface of the lake. Before entering the race, he signed a form that purported to release the race organizer from liability for personal injuries. The Court, citing the earlier case involving Mr. Johnson from 1890, held that the form was not enforceable and that the plaintiff could sue the race organizer for his injuries.
So there you have it. The next time you sign one of those forms, remember that the law of Virginia regards pre-injury releases of liability from negligence as unenforceable and void as against public policy. You should note that the foregoing discussion applies only to forms releasing claims for personal injury that are subject to Virginia law. The law is different for forms that purport to release liability for property damage. Those are generally enforceable.
Pre-Injury Release Differs From State to State
The law is also different in most other states. Just across the state line in Maryland, for example, the Maryland Court of Appeals has held that pre-injury releases are generally valid unless there is legislation to the contrary, provided that the provision in question is clear and specific that it intends to release the defendant from liability for negligently-caused personal injuries. See BJ’s Wholesale Club, Inc. v. Rosen, 80 A.3d 345, 351 (Md. 2013).
The Maryland court does recognize some specific public policy exceptions. For example, a pre-injury release cannot relieve a defendant of liability for more than simple negligence, be the product of “grossly unequal bargaining power,” or involve certain transactions in the “public interest.” Id. at 351-53. However, unlike in Virginia, Maryland law dictates that pre-injury releases are generally enforceable.