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Please release me: Portions of liability release form allowed at trial

Lawyers understandably wince when presented with those liability release forms you have to sign in order to engage in contact sports or other activities with inherent hazards.

The forms have a common premise: “You know this is risky. We’re not responsible if anything goes wrong, unless it’s really, really our fault, and even then probably not.” Yes, the language is more legalistic than that, but you get the idea.

Lawyers cringe because Virginia law is fairly settled that you can’t release someone from liability before the alleged negligence even occurs.

What if something does go wrong, however? When an injured participant sues the organizer of the dangerous sport and the case goes to trial, does the jury get to consider the release?

In the case of a man injured while playing Segway Polo at the Omni Homestead Resort hotel, a federal judge will allow the jury to consider portions of a release for a limited purpose. Hotel lawyers hope to show that the injured Segway player, James McConnel of Harrisonburg, was aware of the risks of playing Segway Polo in a hotel ballroom.

McConnel’s lawyers sought to block the release in its entirety. They argued that prospective waivers of liability are void for violating Virginia public policy. McConnel contended the entire document – arguably prepared by lawyers with unenforceable terms – “constitutes fraud on the public.”

Harrisonburg U.S. District Judge Michael F. Urbanski looked to a 2015 decision by Alexandria U.S. District Judge James C. Cacheris allowing parts of a scuba diving release to be admitted to show the victim’s knowledge of dangers.

Urbanski rejected the notion that a lawyer’s hand in preparation of the questionable waiver would infect the entire document with the taint of fraud.

Though “McConnel’s position would have the salutary effect of disincentivizing the use of unenforceable pre-liability waivers, Virginia precedent is clear that the proper treatment of such documents is to redact those provisions that are void as against public policy, and admit the remainder to the extent independently relevant,” Urbanski wrote.

Urbanski’s ruling came in a four-page order, McConnel v. Omni Hotels Management Corp. (VLW 017-3-356)

Trial in the case is set to start July 24.