Hiett v. Barcroft Beach, Inc.

18 Va. Cir. 315, 1989 Va. Cir. LEXIS 343
CourtFairfax County Circuit Court
DecidedDecember 7, 1989
DocketCase No. (Law) 85646
StatusPublished
Cited by2 cases

This text of 18 Va. Cir. 315 (Hiett v. Barcroft Beach, Inc.) is published on Counsel Stack Legal Research, covering Fairfax County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hiett v. Barcroft Beach, Inc., 18 Va. Cir. 315, 1989 Va. Cir. LEXIS 343 (Va. Super. Ct. 1989).

Opinion

By JUDGE THOMAS J. MIDDLETON

Four of the five named defendants in this suit seek summary judgment. Oral argument was heard on October 27, 1989. For the reasons stated below, summary judgment is granted as to defendants Lake Barcroft Community Association (hereafter "LABARCA"), Barcroft Beach, Inc. (hereafter "BBI") and Barcroft Lake Management Association, Inc. (hereafter "B ARLAMA") [but] denied as to defendant Penland.

BBI is a Virginia corporation which owns an artificial lake known as Lake Barcroft, located in the Lake Barcroft Subdivision, Fairfax County, Virginia. See BBI’s Answer and Grounds of Defense to Second Amended Motion for Judgment (hereafter "BBI’s Answer") at para. 6. BARLAMA is a Virginia corporation which operates, supervises, and controls Lake Barcroft. See BARLAMA’s Answer and Grounds of Defense to Second Amended Motion for Judgment (hereafter "BAR-LAMA’s Answer") at para. 6. In May, 1987, LABARCA sponsored a race known as the "Lake Barcroft Teflon Man Triathlon" (hereafter "Triathlon" or "race"). See LABARCA’s Answer and Grounds of Defense to Second Amended Motion for Judgment (hereafter "LABARCA’s Answer") at para. 2. According to the rules for the race, teams of up to three participants [316]*316were invited to join, with each participant performing one or more of the Triathlon’s three segments (swimming, funning, and bicycling). Upon completing an Entry Form and paying a fee of $11.00, applicants would be entitled to participate in the race, at the conclusion of which he or she would receive a sun visor or T-shirt.

Defendant Novins invited Plaintiff Robert David Hiett to participate in the Triathlon, and he agreed to perform the swimming segment for Novins’s team. Sometime prior to the race, Novins gave Hiett an Entry Form. Hiett filled in his name, address, birth date, age, gender, work, and home phone numbers and signed the form. Novins then paid Hiett’s $11.00 entry fee.

On May 23, 1987, the Triathlon was held as scheduled. The first segment of the race was the swimming portion, to be conducted in Lake Barcroft. Pursuant to the race rules, all the swimmers (including Hiett) lined up along one edge of Beach 4. When a starter pistol was fired, Hiett ran into the water along with the other swimmers. As he reached thigh-deep water, Hiett pushed off the bottom of the lake to begin swimming. At that moment, he was apparently involved in some collision which caused his neck to break, rendering him a quadriplegic.

This lawsuit ensued, with a Motion for Judgment initially filed on July 7, 1988. Following some discovery, the Plaintiff filed an Amended Motion for Judgment on February 7, 1989, which alleged additional facts and additional counts of negligence. A Second Amended Motion for Judgment was then filed on May 3, 1989, alleging the same facts and counts but adding the two individual defendants, Thomas Penland and Evelyn Novins. In broad terms, Plaintiff claims that the Defendants collectively failed (1) to ensure that the Lake was reasonably safe, (2) to properly supervise the start of the swimming segment, (3) to advise the participants of the risk of injury, and (4) to train them how to avoid such injuries.

BBI, BARLAMA, LABARCA, and Thomas Penland generally deny any negligence. In addition, all four have [317]*317moved for summary judgment.1 They claim that the waiver contained in the entry form signed by Plaintiff releases them from all claims for damages as set forth in Plaintiff’s Second Amended Motion for Judgment. In the alternative, they argue that Virginia’s recreational use statute shields them from this tort liability.2

The Entry Form which Hiett signed contained the following language:

In consideration of this entry being accept [sic] to participate in the Lake Bar croft Teflon Man Triathlon I hereby, for myself, my heirs, and executors waive release and forever discharge any and all rights and claims for damages which I may have or my [sic] hereafter accrue to me against the organizers and sponsors and their representatives, successors, and assigns, for any and all injuries suffered by me in said event ....

This language is clearly an attempt to contractually insulate and exculpate the organizers, sponsors, and their representatives from tort liability arising from injuries sustained during the race. As was stated in Barnes v. New Hampshire Karting Ass’n., Inc., 509 A.2d 151, 153 (N.H. 1986):

Exculpatory agreements call into conflict two tenets of the law. First, a party should be liable for the consequences of the negligent breach of a duty owed to another .... Contra-posed against this basic rule of tort law is [318]*318the principle that, as a matter of efficiency and freedom of choice, parties should be able to contract freely about their affairs. ABA Special Committee on the Tort Liability System, Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Tort Law § 5-27 (Nov. 1984); Morrow v. Auto Championship Racing Ass’n., 8 Ill. App. 3d 682, 685, 291 N.E.2d 30, 32 (1972). Under this rule, parties may bargain for various levels of risk and benefits as they see fit. Thus, a plaintiff may agree in advance that the defendant has no legal duty towards him and thereby assume the risk of injury arising from the defendant’s conduct. See W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of Torts § 68, at 480-481 (5th ed. 1984).

Faced with these conflicting tenets, courts have consistently held that a defendant seeking to avoid liability under an exculpatory agreement must show (1) that the agreement does not contravene public policy, (2) that it could be readily understood by a reasonable person in the plaintiff’s position, and (3) that it clearly and unequivocally releases the defendant from precisely the type of liability alleged by the plaintiff. Each of these issues will be addressed in turn.

Turning first to the public policy dimension, certain parties have been prohibited as a matter of public policy from contractually limiting their tort liability. Thus such a provision has been held void when contained in the contract of carriage of a common carrier, unless a reduced fare was charged; or in the contract of a public utility under a duty to furnish telephone service; or when imposed by an employer as a condition of employment. For citations, see Restatement (Second) of Torts § 469B, comment, g (1965); and Restatement of Contracts § 575 (1932).

In this case, the Defendants do not fall into any of the previously recognized categories of parties prohibited from limiting their tort liability. The Court therefore holds that none of these defendants are barred as a matter of public policy from attempting to limit their liability.

[319]*319Plaintiff raises a threshold issue which must be resolved before reaching the substance of the release. It is a matter of black letter law that both contracting parties must assent to the same terms before they will be bound. In this case, Plaintiff contends that he could not have assented to this waiver because he never read it.

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Bluebook (online)
18 Va. Cir. 315, 1989 Va. Cir. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hiett-v-barcroft-beach-inc-vaccfairfax-1989.