Are Liability Waivers Enforceable in West Virginia?

A paying passenger on a New River whitewater trip was thrown inside her raft when her guide deliberately rammed it into another of the outfitter's rafts to knock it free of the rocks. She hurt a knee and an ankle. She had signed a raft trip release before launching, and the outfitter won summary judgment on it. The Supreme Court of Appeals reversed. West Virginia holds that where a statute sets a standard of care for an activity, nobody can contract out of it, because that obligation is owed to the public and is not any private individual's to waive. This is the closest case in the entire series to a guided fishing trip, and the second half of it, about what a general release does not reach, is just as useful. Everywhere else in the country is charted on the liability and waivers hub. Sources here are a single appellate decision and the state code, summarised for working outfitters. It is not counsel and it is not your lawyer.

Are liability waivers enforceable in West Virginia?

Yes, until a safety statute or a recklessness allegation touches them.

The decision is Murphy v. North American River Runners, Inc., 186 W. Va. 310 (1991). The starting rule is favourable to operators. Where no safety statute applies, somebody who plainly and knowingly takes on the danger of being hurt by another party's carelessness, or even by its recklessness, is shut out from suing over it, unless the bargain itself runs against public policy. Such a bargain normally stands when it was struck openly and fairly, by parties of comparable strength, and it treads on no public interest. Notice the opening words. Everything that follows in this article lives inside them.

Wet Net, MT

Whitewater is not a public service, and it did not matter

The state's professional river outfitters association appeared as a friend of the court to argue that a whitewater expedition is not a public service, since inherently hazardous recreational businesses do not provide essential services. The court agreed with that particular point. It then said something the association will not have wanted to hear: pre-injury releases for inherently hazardous recreational or amusement activities will usually be unenforceable when they involve a violation of statutory safety standards, or intentional or reckless misconduct or gross negligence. So winning the essential service argument bought the industry very little, because the exceptions that mattered came from somewhere else.

A statutory standard belongs to the public

The reasoning is worth following carefully because it generalises. A clause exempting a party from tort liability is unenforceable where the injured person is a member of a class protected against the class inflicting the harm, and the classic instance is where a statute imposes a standard of conduct. In that situation a clause purporting to exempt a party from liability to a protected person for failing to meet the statutory standard cannot stand, because the safety obligation the statute creates is owed to the public at large and is not within the power of any private individual to waive. Put plainly: the legislature did not give the duty to your customer, so your customer cannot give it back to you.

The statute that did it

West Virginia's Whitewater Responsibility Act had come into force months before the trip. Its stated purpose was to define the areas of responsibility and affirmative acts for which commercial whitewater outfitters and guides are liable, on the footing that it is essentially impossible for them to eliminate the inherent risks of the activity. Under W. Va. Code 20-3B-3, outfitters and guides must provide facilities, equipment and services as advertised or as agreed with the participant, all of which must conform to the safety requirements in the licensing article and the rules of the state's commercial whitewater advisory board. Then comes the sentence that decided the case: all commercial whitewater guides providing services in the state shall, while providing those services, conform to the standard of care expected of members of their profession.

Read your own activity's statute for that sentence

The court treated that provision as establishing a statutory safety standard for the protection of participants, which meant the release could not exempt the outfitter from the guide's failure to meet it. If a comparable sentence exists in the statute governing your activity, the same reasoning applies to you. Look for language imposing duties on the operator rather than merely describing what participants assume: requirements to provide advertised equipment, to meet a board's rules, to maintain premises in reasonably safe condition, or to meet a professional standard. Statutes of this kind are usually sold to operators as protection, and this case shows the other edge. Where the legislature has written down what you must do, no signature relieves you of doing it.

The general clause does not reach recklessness

The second holding stands on its own. A general clause in a pre-injury exculpatory agreement purporting to exempt a defendant from all liability for any future loss will not be construed to include loss resulting from intentional or reckless misconduct or gross negligence, unless the circumstances clearly indicate that was the plaintiff's intention. The same applies to a clause exempting all future negligence: it will not be read to cover intentional or reckless conduct unless that intention clearly appears from the circumstances. That is a rule of construction rather than a flat prohibition, and it left the door open in an unusual way, because the court said it did not attribute to the legislature an intention that parties may never have the contractual freedom to agree that a participant assumes the risk of such conduct.

Within the contemplation of the parties

All of that flows from a general principle the court restated: a release ordinarily covers only such matters as may fairly be said to have been within the contemplation of the parties when it was executed. And a release is construed from the standpoint of the parties at the time of execution, with extrinsic evidence admissible to show the relationship of the parties and the circumstances surrounding the transaction. Where that evidence is not in conflict the court construes the writing, but where it conflicts on a material point the meaning goes to the jury. That is why the plaintiff's own affidavit mattered so much.

What she said, and why it worked

She swore that she had not been told in advance that rescues might involve intentionally bumping one raft with another, and that she had never contemplated the release applying to intentional acts, only to ordinary negligence in the form of piloting mistakes on a normal trip down the river. That is an entirely credible account, and it is the account almost any customer could give about almost any manoeuvre outside the ordinary. The lesson for a guide is direct. If your operation does something a customer would not expect, describe it in advance, in the document and in the briefing. A hazard nobody mentioned is a hazard nobody contemplated.

Assent has to be brought home

The court also set out what it takes for an express assumption to be effective in the first place. It must appear that the plaintiff assented to the terms, and particularly where the agreement was prepared by the defendant, it must appear that the terms were in fact brought home to and understood by the plaintiff. It quoted an older state rule that to relieve a party from liability for its own negligence by contract, language to that effect must be clear and definite. Brought home is an active phrase. It contemplates somebody drawing attention to the clause rather than including it in a stack of paperwork handed over at the put in.

Magic words are not required

On the narrower drafting question the court followed a federal decision arising from another West Virginia rafting trip, holding that language relieving a defendant from all liability for any future loss is sufficiently clear to waive a common law negligence action even without the words negligence or negligent acts or omissions, provided the contract as a whole and the circumstances show both parties intended that waiver. So this is not a state where the absence of a particular word sinks a form. It is a state where the reach of the form is decided by what the parties can be shown to have had in mind.

California Shark, CA

The expert affidavit is the shape of a modern claim

What actually defeated summary judgment on the statutory point was an affidavit from an experienced whitewater guide saying there were reasonable alternatives to the rescue undertaken, alternatives that would have posed no risk of harm to the occupants of her raft. That is how a professional standard of care claim is built: somebody who does the job says a competent operator would have done it differently. Fishing guides face exactly the same test whenever a decision goes wrong, whether about a crossing, a landing, an anchoring spot or a rescue. The best answer is to be able to explain the choice you made and why, at the time, it was the reasonable one, which means writing it down while it is fresh.

Helping another boat is a decision too

It is worth dwelling on what the guide was actually doing, because guides do it constantly. He was going to the aid of another of the company's rafts. Assisting another vessel, taking a line from a stranded boat, towing a broken down skiff, picking up somebody else's swimmer: these are decent instincts and they are also manoeuvres that put your own passengers into a situation they did not book. Brief them before you commit. Say what you are about to do and what it may feel like. Where there is a safer alternative that costs time rather than risk, take it and note that you did. A rescue that injures your own customer is the worst possible outcome of a good impulse. The related question of who answers when two businesses share a day is worked through in the North Dakota analysis.

The clause that tries to be as broad as the law allows

The release in this case contained a sentence worth examining because it appears in a great many outfitter forms. The customer expressly agreed that the release was intended to be as broad and inclusive as permitted by state law, and that if any portion were held invalid the balance would continue in full force. That is a sensible severability provision and it saved nothing here, because the problem was not that one clause overreached while the rest survived. The problem was that the document could not touch the duty in the first place. A savings clause protects you against a drafting error. It does nothing about an obligation the legislature placed outside private bargaining, and no phrasing about the maximum the law allows expands what the law allows.

Two of the three exceptions are in your control

Sort the exceptions by what you can influence and the priorities become obvious. The statutory standard of care is not negotiable and never will be, so the only response is to meet it, which means training, procedure and records. Recklessness is largely a matter of the decisions you make in the moment and whether you can explain them afterwards, which again comes back to records. The one purely legal exception, public policy, has already been resolved in the industry's favour on the essential service question. So an outfitter here is not fighting the law. It is being told, quite precisely, that the law expects competence and will not accept a signature instead.

Advertised as agreed is its own duty

One limb of the statute is easy to skip past and worth a paragraph. Outfitters and guides must provide facilities, equipment and services as advertised or as agreed with the participant. That converts your own marketing into an obligation. If the website promises two guides, a certain craft, particular equipment or a specific stretch of water, delivering something else is not merely a customer service problem. It is a departure from a statutory duty, and this is the state that holds statutory duties unwaivable. Go through your listings and your confirmation emails before the season and make sure every promise in them is one you will actually keep on the worst day of the year, not the best. The same marketing-as-evidence problem appears from another angle in the Minnesota piece.

What a West Virginia form should do

Write it to be clear and definite about negligence, even though the word is not strictly required. Describe the trip and the water specifically. Then go further than most forms do and describe the unusual things that can happen: rescues, assists, running a section you had not planned, changing craft, walking a stretch. Say those may involve manoeuvres that feel abrupt. That description is what brings the conduct within the contemplation of the parties, which is the test the court applied. Do not attempt to sweep in reckless conduct or breach of a statutory duty, because the first will not be read into a general clause and the second cannot be waived at all. A first draft comes together faster with the primer on these documents open alongside it, and the recurring administrative slips are catalogued in the review of waivers that came apart.

The licensing regime is part of the picture

The Act works alongside a licensing scheme, and the definitions it borrows describe a commercial whitewater outfitter as a person or organisation which for monetary profit or gain provides whitewater expeditions or rents craft or equipment for use in them, and a commercial whitewater guide as an owner, agent or employee who is qualified and authorised to provide those services. Those definitions matter because the statutory duties attach to people inside them. Verify the exact current licensing, qualification and registration requirements with the agency that issues them before you take a booking, since the standard of care that cannot be waived is tied to the professional status the licence describes.

How West Virginia compares

On recklessness this sits close to the position described in the Pennsylvania analysis, though Pennsylvania treats the limit as a matter of public policy while West Virginia treats it as a matter of construction with a door left ajar. On statutory duties it lands near the reasoning in the New Mexico piece, where an activity statute's own terms defeated a release. An operator working across those lines should assume the strictest reading applies and write one document accordingly.

Getting ready for the season

Find the statute that governs your activity and read it for duties rather than for protection. If it imposes a professional standard, treat that standard as unwaivable and build your training and records around it. Add the unusual manoeuvres to your hazard description and to your briefing. Decide in advance how you will handle assisting another boat with customers aboard. Keep a note of judgment calls and the alternatives you considered, because that is what answers an expert affidavit two years later. Whatever the paperwork misses is a job for the policy, and the captain insurance breakdown takes those apart piece by piece; if you have never bought cover, the federal notes on business insurance are a sane starting point. Calls about weather and cancellations want the treatment described in the contingency routine. Everything specific to running trips here is pulled together in the West Virginia guide hub.