Pre-Injury Liability Waivers in Vermont
Likelihood of Enforcement: Weak
Vermont will uphold a well-written waiver as long as it is not against public policy. Importantly, however, Vermont recognizes that waivers in certain recreational industries (most notably skiing) do, in fact, violate public policy and will not be enforced. Dalury v. S-K-I, Ltd., 670 A.2d 795, 796 (Vt. 1995).
While Vermont courts considered the factors outlined by the California courts in Tunkl, the state eventually substituted it with its own formulation. Littlejohn v. TimberQuest Park at Magic, LLC, 116 F.Supp.3d 422, 426 (D.Vt. 2015). The case establishing this new formulation was Dalury, in which the court rejected the idea that only waivers for essential services could be void against public policy and instead used its own two-factor test to declare skiing waivers void against public policy. The two factors are as follows:
1. That the business holds itself out as being available to all members of the public, without regard for training or ability
2. The owners of the property have control over the venue in which the activity occurs and therefore in the best position to assure the safety of visitors. Id.
Subsequent cases have reinforced this test, and when these two conditions are met, the court will refrain from enforcing a waiver even if it is otherwise well written [see Dalury, Spencer v. Killington, Ltd., 702 A.2d 35 (Vt.,1997)] If these factors remain absent, however, the court is likely to uphold the waiver as long as it is well written. [see Thompson v. Hi Tech Motor Sports, Inc., 945 A.2d 368 (Vt.,2008), Provoncha v. Vermont Motocross Ass'n, Inc., 974 A.2d 1261 (Vt.,2009)]
Vermont courts have stressed that, because of waivers’ disfavored status, the language of waivers is subjected to heightened scrutiny. Thompson, 945 A.2d at 375. However, Vermont does not require that a waiver specifically excuse the benefitted party from “negligence” as long as the language of the waiver is sufficiently clear as to show the parties’ intention to waive liability. id.
Vermont will allow parents to sign waivers on behalf of their minor children, but only under strict conditions mandated by statue 14 V.S.A. § 2643:
(a) The superior judge of the superior court within and for the county where the minor resides, on behalf of a minor, must approve of and consent to a release to be executed by a parent in the settlement of any claim which does not exceed the sum of $1,500.00. A release so furnished shall be binding on the minor and both parents, their heirs, executors, administrators or assigns, respectively.
(b) Any claim settled for a sum in excess of $1,500.00 shall require the approval of a court-appointed guardian.
Last updated 12/2018
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.