Advance Waivers Are Unenforceable

July 16th, 2019

Most of us have signed one; nearly all of us have at least seen one.  The Little League asked for one before it would allow your child to 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, and in nearly every other state as well.

Why, then, does the use of waivers remain so commonplace?

  • Many people mistakenly believe the waivers are valid. Thus, when an injury occurs, a negligent party may be spared from having to defend or pay what might have been a valid claim, if the injured party simply never sues.
  • Insurance companies often require their policy holders to require the waivers, hoping to take advantage of this mistaken belief.
  • Waivers can still be helpful in proving that the signing party understood and assumed a known risk of an activity, in cases where an injury occurs without fault. For example, anyone playing baseball knows that a hitter can get hit by a fastball, and football players know the opponents will hit them hard.  Sponsoring leagues, coaches and officials are generally not liable for injuries from known and inherent risks, unless other factors were involved.

The first two reasons are sometimes effective, even if underhanded.  The third requires careful drafting and an absence of negligence to work.

But the courts have been steadfast in refusing to yield to the unenforceable waivers.  The idea is to keep in place the legal incentives to seek out and take prudent steps to prevent injuries where ever possible – instead of just allowing injuries to occur while seeking to disclaim liability.

It must be stressed, however, that this rule applies only to waivers signed before the injury occurred.  Releases signed after the injury happened have always been enforceable, and should never be signed in the absence of fair compensation.

If you’ve been hurt and need to know whether the insurance company is treating you fairly, don’t hesitate to call upon the lawyers you already know and trust, at Marrs & Henry.