By Doyice Cotten

James McConnel was injured while participating in Segway Polo associated with Omni Hotels Management Corp. The issue came up as to the admissibility of the waiver signed by McConnel (McConnel v. Omni Hotels Mgmt. Corp., 2017).

Since prospective waivers of liability are void as against public policy under Virginia law (Hiett v. Lake Barcroft Cmty. Ass’n, Inc., 1992),  Omni asked the court to rule that the “Segway Personal Transporter Tours Liability Release Form was admissible with all portions relating to waiver of liability for negligence redacted. Omni wished to show that the plaintiff was aware of the risk of the Segway activity.

McConnel argued that the entire document should be ruled inadmissible.  McConnel claimed that “laypersons with documents which they represent to be valid and to have the force of law, when they know they are in fact void and unenforceable” constitutes fraud on the public.  He contended that it would be inadequate to “simply redact certain language from the liability waiver.”

The court held that the argument is simply not supported by the case law; courts have addressed how documents such as the Release should be treated for admissibility purposes. The court looked to the precedent set in Manchanda v. Hays Worldwide, LLC (2015).  The Manchanda court determined that “Virginia public policy will not permit the Court to view those Agreements as decisive evidence that [decedent] expressly assumed the risk of Defendants’ negligence;” nonetheless, the court admitted “other parts of the Agreements as evidence of [decedent’s] knowledge of the dangers of scuba diving.”

Risk Management Take-Aways

There are two points that the reader should get from these cases. 1) Even in states in which courts or statutes have forbade the enforcement of waivers of liability for negligence, sport, recreation, and fitness enterprises should continue to require waivers of all participants. One never knows when one might be helpful. 2) One should acquire a waiver that fully addresses the assumption of inherent risks. Such a waiver would include:

• a list of the typical hazards or causes of participant injuries (falls, collisions with others, being struck by a ball or bat);
• a list of injuries that can occur in the specific activity including common minor injuries (bruises, sprains), possible major injuries (concussions, torn ACLs, broken arms), and catastrophic injuries (brain injuries, paralysis, death); and
• an unambiguous statement that the participant understands the risks of the sport and voluntarily assumes all such risks.

Photo Credit: Thanks to nr1 via Flickr.