Builders and Contractors Exchange
Weekly Bulletin: 28 Feb 2005
But He Signed The Release...
By: James Harvey III
Have you ever wondered what all of that legal-speak means on the release you signed last week for your child to ride the bus for her field trip? What about the form you signed to get ski lift tickets while on vacation, or the application to run in the local 5k race? What about the release and indemnity paragraph in the equipment rental contract for a boom-lift on your latest construction project? Well, in Virginia, all of that legal-speak apparently means next to nothing.
In a 1992 Virginia Supreme Court case, a would-be triathlete was injured diving into the water. He had signed a release and indemnity provision in his race application, but the Virginia Supreme Court held that such releases signed before the injury occurs are against public policy and void. Hiett v. Lake Barcroft Community Assoc., 244 Va. 91 (1992).
While this was curious twist of Virginia law for the local 5k race, or children's field trip, it didn't have much to do with construction projects until recently. This same rationale was used to invalidate an indemnity provision in an equipment rental lease last year. In Green v. Sauder Mouldings, Inc., 245 F. Supp. 2d 610 (E.D. Va. 2004), an equipment rental company delivered a boom-lift, and the contracator's employee accepting the equipment had to sign the Lease Agreement, but never had an opportunity to negotiate its terms. When another employee was injured when the boom-lift tipped over, the rental company relied on its release language. Because it was not a negotiated term of the contract, the court looked at the Hiett case and determined that the release and indemnity provision was against public policy and void. Unlike most of Virginia law, what is in the contract may NOT control when it comes to pre-injury releases.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.