The topic of liability waivers came up when discussing the wrongful death suit that Tough Mudder now faces in connection with the drowning death of a participant in West Virginia. Tough Mudder events obviously present a unique case (due to the dangerous obstacles), but it seems that almost all races now require participants to sign some sort of release or waiver as a condition of participation (even the ones that just include plain old running and not flaming hoops, blasts of colored dye, or mild electrocution).

A law student in first-year Torts learns rather early during the fall semester that in some states an agreement that contains a provision waiving A’s liability to B for A’s negligence is not enforceable (i.e., it is “void as against public policy”; for a list see here). On the other hand, there are a lot of states that allow them (or at least allow them in certain situations). I’ll limit myself to talking about the Old Dominion State.

For well over a century n Virginia, a pre-injury release has been considered void and if you think about it, the rule makes sense. When it comes to negligence, the law has concerned itself with setting up standards that will encourage people to act with a reasonable degree of care. Allowing someone to determine ahead of time that they will escape any consequences for failing to exercise care would defeat the purpose of the legal standard.

That was basically the reasoning of the Supreme Court of Virginia in the 1890 case of Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890). There, a worker in a quarry was killed while trying to warn a coworker about an oncoming train. Although the railroad agreed with the company of quarry workers that train moving through the work site would not exceed six miles per hour, the train in that case was moving at the (at least for 1890). breakneck speed of twenty-five miles per hour. When Johnson’s estate sued the railroad, they responded by waving around their agreement which contained a clause that released them from liability for Johnson’s death. The Supreme Court of Virginia wouldn’t have it:

[T]o 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.

That’s a holding that the Supreme Court of Virginia reaffirmed more than a century later in the case of Hiett v. Lake Barcroft Community Ass’n, 418 SE 2d 894 (Va. 1992). That case is, perhaps, a little more relevant for runners, because it involved a triathlon. While participating in the “Teflon Man Triathlon” in Lake Barcroft, Virginia, Robert D. Hiett, dove into Lake Barcroft, struck something beneath the water, and was rendered a quadriplegic.

The race entry form contained the following language:

In consideration of this entry being accept[ed] to participate in the Lake Barcroft Teflon Man Triathlon I hereby, for myself, my heirs, and executors waive, release and forever discharge any and all rights and claims for damages which I may have or m[a]y hereafter accrue to me against the organizers and sponsors and their representatives, successors, and assigns, for any and all injuries suffered by me in said event.

If you’ve signed up for many road races, you’ve almost certainly seen something similar to that.

Initially, the trial court held that the waiver acted as a valid release, allowing the defendants to escape liability. The judge reasoned that “such a release was prohibited as a matter of public policy only when it was included: (1) in a common carrier’s contract of carriage; (2) in the contract of a public utility under a duty to furnish telephone service; or (3) as a condition of employment set forth in an employment contract.” Because none of those situations was present, the release should stand. The Supreme Court of Virginia disagreed and reversed. Although some cases regarding waivers of liability for property damage and indemnification had cropped up over the years, the basic holding of Johnson was still good: “provisions for release from liability for personal injury which may be caused by future acts of negligence are prohibited ‘universally.'”

I suppose I can understand the overabundance of caution that prompts race directors to put waivers in their sign-up forms. In the case of big-time events like the Rock ‘n Roll series, I’m sure that it’s much easier to make one set of forms, than to worry about tailoring each race’s set of forms to the nuances of tort law in that state. Still, the fact that in some places these sorts of waivers are barely worth the paper they’re written on in is puzzling.

Note, however, that the unenforceability of release and waivers like these doesn’t necessarily mean that race organizers can always be left holding the bag if participants suffer some sort of injury during an event. If some idiot decides to participate in a marathon in Florida in August and tries to do it without drinking any liquids (despite the fact that race organizers make them available), he shouldn’t expect to recover anything from the race when he inevitably collapses from dehydration, heat exhaustion, etc. He added risk to the event that the race organizers tried (within reason) to eliminate; race organizers exercised reasonable care, but he did not.

One last interesting tidbit on this topic is pointed out by Jim Moss who writes the blog “Recreation Law.” In Virginia, there is a specific exception to the general prohibition on waivers of liability: for equine activity sponsors or equine professionals. The exception is codified at Va. Code Ann. § 3.2-6202. Why does Virginia have an exception to the general rule that applies only to activities involving horses? I have no idea, but this certainly wouldn’t be the only instance in which Virginia law contains a quirk that is completely unique to the Commonwealth. The section is limited to injuries resulting from “the intrinsic dangers of equine activities,” but unless a sinkhole suddenly appears in the middle of your polo field, it seems that this section is going to be a pretty good cover of organizers of equine events.