You likely know the story by now. What started as an intrepid expedition to take a close-up look at the wreck of the Titanic using an experimental submersible vehicle named Titan to descend 12,500 feet below the surface of the north Atlantic Ocean, ended with the subsequent discovery of the Titan in pieces scattered on the ocean floor, as reported by the U.S. Coast Guard, and the apparent deaths of the five people on board. It has also been widely reported that the individuals onboard the Titan had paid up to $250,000 for the privilege and, as a condition of their participation, had voluntarily signed extensive liability waivers purporting to preclude recovery of damages from the Titan’s owner, OceanGate Expeditions, Ltd. (“OceanGate”), in the event of a mishap, even a catastrophic one.
While the terms of the liability waivers signed by the Titan’s passengers are not yet known, it has been reported that the liability waivers were lengthy and extensive, with one individual who had been onboard the Titan back in 2022 offering that it mentioned the possibility of death three times on the first page alone. But, setting aside the peculiarities of international maritime laws – and there are many — how effectively might a liability waiver be, even if extensive, to shield OceanGate from liability for the deaths of those onboard the Titan when it apparently imploded? It depends. Several factors can influence the enforceability and scope of protection offered to OceanGate in this scenario, or to any business, including the laws of the state (or country) governing the liability waiver and the location of the harm.
On the one hand, those who chose voluntarily to descend more than two miles below the ocean’s surface while inside an experimental submersible must have known that they were engaging in an inherently risky and highly dangerous activity, right? And there is little doubt that with the liability waiver OceanGate went to great lengths to inform the Titan’s passengers of all the risks inherently involved in the adventure and the various ways in which deep sea activities in an experimental submersible the risks of serious harm could occur, including the possibility of death, as noted above.
But is that enough to shield OceanGate? Legal experts have been weighing in on both sides. The discussion and uncertainty surrounding the effectiveness of liability waivers has left many businesses asking: Would a liability waiver from a customer help shield my business from potential damages? Because waivers are interpreted under state law, for Virginia businesses the answer requires a review of the Commonwealth’s legal theories relating to liability waivers – waiver and assumption of risk.
Are Pre-Injury Waivers of Liability Enforceable in Virginia?
In short, the answer is no.[1] At its most basic, a liability waiver is just a contract. Virginia law generally “looks with favor upon the making of contracts between competent parties upon valid consideration and for lawful purposes.” However, a contract that violates Virginia public policy is void and unenforceable. Pre-injury waivers of liability for future negligent acts or omissions are just that kind of contract — contrary to Virginia public policy and unenforceable — for two basic reasons:
(1) the party suffering personal injury is barred from seeking a recovery from the wrongdoer, likely depriving the injured party of all possibility of recovery; and
(2) the released party’s motivation to exercise ordinary care to prevent harm to the releasing party may be diminished because the possibility of legal liability is removed.
To hold otherwise, a Virginia court concluded more than a century ago, would essentially license one party to put the other parties to the contract at the mercy of its own misconduct, which should never be encouraged by the law.
Thus, a pre-event waiver of liability signed by triathlon event participants that purported to “waive, release and forever discharge any and all rights and claims for damages which I have or may hereafter accrue to me against the organizers and sponsors . . . for any and all injuries suffered by me in said event[,]” was against Virginia public policy and unenforceable. It did not bar the estate of an event participant who died while participating in the triathlon from recovering damages against the event organizers.
Virginia is an outlier, one of only a few states that does not permit the use of pre-injury liability waivers. Long-standing legal precedent makes it unlikely that Virginia would enforce a pre-injury waiver of liability for damages that includes language attempting to waive activity-related damages resulting from a business owner’s negligence or intentional acts or omissions.
Can a Virginia Business Require Customers to Assume the Risks of Participating in Dangerous Activities?
Even if Virginia does not permit pre-injury waivers of liability, will it pass legal muster for a Virginia business to contract with its customers to assume all risks of injury that may arise from voluntarily engaging in risky activities, even an inherently dangerous one like those of the Titan deep sea dive? Possibly yes, but only if the business protects itself with carefully worded assumption of risks language in its liability waiver. Even then, assumption of risk sometimes does not provide a business with complete or adequate protections against liability and damages.
Under Virginia law, a person’s voluntary assumption of the risk of injury from a known danger operates as a complete bar to recovery for a defendant’s alleged negligence in causing that injury. To assume a risk, the injured party must:
(1) fully appreciate the nature and extent of the risk; and
(2) voluntarily incur the risk.
The focus of the analysis remains on the actual risk alleged to have caused the injury, not merely the risks that may be inherent in an activity. For example, a Virginia court found that an injured party could fully understand and voluntarily assume all general risks as attendant to an amusement park water slide, but still not subjectively appreciate or assume the risk that an amusement park employee’s inattention would create a risk that resulted in serious personal injuries to the individual.
A second court concluded similarly that an individual who drowned during an underwater dive hosted by a scuba instruction outfit assumed all the inherent risks of injury arising from underwater diving, but still did not subjectively appreciate and, therefore, could not have voluntarily assumed the risk, that a dive outfit employee would look away from the deceased at the moment she became separated from the dive group during the dive. Courts focus on the subjective state of mind of the injured party, i.e., what risks the injured party appreciated, and not what a reasonable person would have known.
How Can a Virginia Business Best Avoid Liability?
Comprehensive and carefully worded assumption of risk language is essential. Yet even with advance risk disclosures that seems to make it clear in every reasonably conceivable way that a customer is assuming the risks of injury or even death, the risks to your business still may not be fully mitigated. As the amusement park water slide and scuba diving examples above highlight, no waiver of liability, assumption of risk, or other means of trying to limit losses is ironclad. Nor can they effectively substitute for the need to liability by making every effort to maintain a safe business environment for your customers by ensuring that your business is in full compliance with federal, state, and local laws, regulations, and executive orders.
If you have questions or need any assistance, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.
[1] Note that Virginia has a narrow statutory exception that permits pre-activity waivers of liability relating to horseback riding.