A few weekends ago I participated in a race, but before I was allowed to cross the starting line I had to sign a waiver. The purpose of this dense, official-looking piece of paper was to limit the liability of the race organization in the event that I, or any other participant, should be injured during the event.
Waivers are pretty common, and sometimes you don’t even have to sign anything. Last winter many of us clipped lift tickets onto our jackets at ski resorts. The resorts claim that just by putting these tickets on, we agree to the terms of the waiver, once again, not to hold the company responsible for any potential negligence that results in injury.
Yes, waivers are everywhere, from your child’s trampoline birthday party, to amusement parks, to your local gym. We sign them because we want to participate in these activities, but what do they really mean? If you do get injured after signing a waiver, who is responsible, and what are your legal options?
Don’t Panic Yet
Fortunately, these waivers are against public policy in Virginia. The Supreme Court of Virginia affirmed this stance in Hiett v. Lake Barcroft Community Association, a case concerning a waiver signed by a participant in a triathlon. The Court argued that this type of waiver is not be legal because the patron has no bargaining power to negotiate the terms of the contract. They must either accept the terms or choose not to participate. In other words, the patron is forced to “take it or leave it.”
If these waivers are not enforceable, then why do companies still make people sign them? Well, there are a few reasons.
- The law could change. Waivers aren’t enforceable in Virginia right now, but that could change in the future, and companies want have as much legal protection as possible.
- Even if part of the waiver is not enforceable, it’s possible that other parts are legal. If the waiver includes what is called a “severability clause,” the legal portions of the waiver can be enforced regardless of the unenforceable parts.
- They alert patrons to the inherent risk of the activities in question, and they might promote more careful and responsible behavior while participating.
Of course, we will go on signing these waivers. It seems our only other option is to hide in our homes and avoid most activities. However, we can breathe a little easier knowing that Virginia law is on the patron’s side. So go skiing. Go exercise. RSVP “yes” to those parties. Ride the rollercoasters. Cross the finish lines. If you are injured, just know that you have legal options for recovery.
By Kimberly J. Raab, Esq.