Most of us have seen one, even signed one. The Little League asked for one before your child could play; the high school football coach sent one home with your son; your recreational softball league wants every member of every team to sign one.
Yet waivers of injury claims signed prior to the occurrence of an accident are unenforceable in Virginia, as in most other states.
Why, then, are waivers such standard items?
- Many people mistakenly believe the waivers are valid. Thus, when an injury occurs, a negligent party may be spared from a potentially good claim.
- Waivers can still be helpful in proving that the signing party understood and assumed a known risk of an activity (e.g., a baseball player struck by a pitch), in cases where an injury occurs without fault.
- Businesses and others may hope one day to craft a perfect document that courts will uphold.
The first reason is sometimes effective, even if somewhat underhanded. The second requires careful drafting and an absence of negligence to work. But the Virginia Supreme Court has so far slammed the door on the third reason, by repeatedly reaffirming its historic position that pre-injury waivers violate public policy. The court fears that a change in the precedents in this area might lessen the incentives provided by the legal system to take prudent steps to prevent injuries where possible.
It must be stressed, however, that only waivers signed before the injury occurred are void. Post-injury releases have always been enforceable and remain so today.
K. Ruppert Beirne
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