Many Virginia businesses have reopened, in spite of the COVID-19 pandemic. Prudent businesses may require clients and customers to sign COVID-19 liability waivers - that is, agreements to prospectively waive any claims against such businesses for any COVID-19-related injuries.
However, Virginia businesses - and their lawyers - can only take limited comfort in such waivers, because they are likely unenforceable. Virginia is one of only three states that categorically refuse to enforce preinjury liability waivers.
Thus, even if an injured party previously agreed to release a business from any and all claims based on negligence, the business can still be held liable for negligence. This means that, as a practical matter, Virginia businesses operating during the COVID-19 pandemic must still exercise all reasonable care in attempting to provide their clients and customers with a safe and healthy environment.
Nevertheless, Virginia businesses should not abandon all attempts to minimizing their COVID-19 liability through client or customer agreements. While liability waivers may not provide an absolute defense, other language in the agreement can be used as evidence that the injured party assumed the risk of a COVID-19-related injury - and assumption of risk is a valid defense under Virginia law.
Accordingly, agreements that fully disclose the risks of COVID-19 can and do serve a function. They just cannot be relied upon to fully absolve a business from all potential COVID-19 liability.
Preinjury Liability Waivers Under Virginia Law
Virginia's aversion to preinjury liability wavers dates back to at least the 1890s, and a case involving a railroad accident. In Johnson Administratrix v. Richmond & Danville Railroad Company,1 a railroad company hired James Johnson to remove a granite bluff that was on the railroad company's right of way.
The railroad agreed with Johnson that, when its trains passed the bluff, they would slow to 6 miles per hour, and also agreed that the railroad company would "in no way be held responsible for any injuries to, or death of, any of the members of [Johnson's] firm, or of any of its agents and employees, sustained from said work, should such death or injury occur from any cause whatsoever."
One day, a train approached the work site at 25 mph. At the same time, one of Johnson's men was approaching the tracks with a heavy wheelbarrow, and headed downhill. Johnson ran toward the man, "with the train right behind him," warning of the oncoming train, but the man could not stop until the wheelbarrow reached the tracks.
Just as Johnson reached the man, the train struck the wheelbarrow, which slammed into Johnson, who died the next day. Johnson's estate sued the railroad company.
At trial, the jury entered a verdict in favor of the railroad, based on the contractual liability waiver. The Virginia Supreme Court reversed, holding that the waiver was void as a matter of public policy.
The court noted that the waiver purported to exempt the railroad from liability "even for the consequences of the company's own negligence ... and consequently precludes a recovery by the plaintiff, whether the company was negligent or not." The court found this was against public policy:
It would be strange, indeed, if such a doctrine could be maintained. To uphold the stipulation in question would be to hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct, which can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it, and contracts against public policy are void.2
The Virginia Supreme Court thus reversed and remanded the case for a new trial.3
Just over 100 years later, the Virginia Supreme Court reaffirmed Johnson in a case involving a tragic triathlon injury. In Hiett v. Lake Barcroft Community Association,4 a community association in Falls Church organized a triathlon to take place in and around Lake Barcroft.
A homeowner in the area asked Robert Hiett to join her as part of a team of teachers. Hiett agreed, and signed a liability waiver, which provided that he would "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 ... for any and all injuries suffered by me in said event."
At the start of the swimming event, Hiett "waded into Lake Barcroft to a point where the water reached his thighs, dove into the water, and struck his head on either the lake bottom or an object beneath the water surface." Hiett was paralyzed, and later filed suit alleging a failure to ensure the lake was reasonably safe, to advise participants of the risk of injury and to provide training on how to avoid such injuries.
The circuit court held that, absent fraud or misrepresentation, the liability...
