General Information Only. This article is for general informational purposes and does not constitute legal advice. Laws may have changed since publication. Your situation may differ; consult a licensed Virginia attorney about your specific matter.
The information in this article is for general informational purposes only and does not constitute legal advice. Laws change and individual circumstances vary. Consult a licensed Virginia attorney about your specific situation. Reading this article does not create an attorney-client relationship nor does merely contacting our office through this website or any other means.
Almost every short-term rental agreement has a waiver in it. The guest clicks past it, nobody thinks about it again, and it sits there doing whatever everyone assumes it does.
Virginia is one of the places where that assumption is worth a second look. The Commonwealth has treated pre-injury releases of personal injury claims differently from ordinary contract terms for a very long time, and the reasoning behind that is genuinely interesting — partly because it explains what a waiver cannot do, and partly because it points toward other provisions that may be doing more work than owners realize.
Why Virginia Looks at These Differently
The rule traces back to an 1890 case, Johnson’s Adm’x v. Richmond & Danville R.R. Co., and the facts are worth a moment.
A firm of quarry workers contracted with a railroad to remove a granite bluff from its right of way. The agreement said the railroad would not be responsible for injury or death to any member of the firm “from any cause whatsoever.” A worker was then killed by a train moving well above the speed the contract specified. The Supreme Court of Virginia held the release void, reasoning that enforcing it would put one party “at the mercy of [the other’s] own misconduct,” which “can never be lawfully done where an enlightened system of jurisprudence prevails.”
That is strong language, and the Court has not walked away from it. In 1992 it applied the same rule to a recreational waiver in Hiett v. Lake Barcroft Community Ass’n. A triathlon participant had signed an entry form releasing the organizers from “any and all injuries suffered by me in said event,” and was catastrophically injured at the start of the swim. The trial court enforced the release; the Supreme Court reversed.
Two things about Hiett tend to surprise people. The trial court had assumed the prohibition applied only to common carriers, utilities, and employment contracts — a reasonable guess, and one the Supreme Court rejected. And the Court noted the original rule rested on public policy generally, not on anything particular to railroads.
So a form drafted for use in other states may not do here what it was built to do. That is not a small drafting detail; it changes what the rest of the agreement has to accomplish.
The Line Virginia Draws Runs Through Injury, Not Damage
A fair question at this point is whether the rule swallows every risk-shifting provision. It does not.
Hiett surveyed the cases decided after Johnson and described them as having upheld the right to contract for release of liability for property damage, and for indemnification against third-party property damage claims — pointing to decisions including C & O Ry. Co. v. Clifton Forge-Waynesboro Telephone Co. (1976) and Nido v. Ocean Owners’ Council (1989).
Which means provisions about damage to the house, the furnishings, or a guest’s own belongings sit in a different category from anything touching bodily injury. Bodily injury is where the line falls.
Indemnity Is a Different Animal, and an Open Question
Here is where owners and their drafters most often go wrong in both directions.
Many assume Hiett disposed of indemnity provisions along with releases. The Supreme Court of Virginia addressed that directly in 2007 and reached the opposite conclusion — though in a commercial setting quite unlike a vacation rental booking, which matters a great deal to how far the holding travels.
Estes Express Lines, Inc. v. Chopper Express, Inc. involved a truck lease between two businesses. The lessee agreed to indemnify the lessor against injury claims arising from use of the vehicles; an employee of the lessee was hurt, sued the lessor, and the claim settled. The trial court read Hiett to void indemnity for personal injury. The Supreme Court reversed, and its reasoning turned on effect rather than label. A release extinguishes the injured person’s right to recover. An indemnity provision leaves that right untouched — the negligent party stays liable to the injured person, and the clause only decides which of the two contracting parties absorbs the loss.
Now the part worth being honest about. Estes involved sophisticated commercial parties negotiating at arm’s length, and the opinion leans on that. Whether comparably broad language would be enforced against an individual guest clicking through a booking screen has not been resolved by any Virginia decision we located. That is a real open question, not a lawyerly hedge — and it is the kind of question where the answer may well turn on how a particular provision is written and how it was presented.
Two practical footnotes belong here too. An indemnity provision is worth what the indemnitor can actually pay. And the General Assembly has voided indemnity for a party’s sole negligence in one specific setting, construction contracts, under Va. Code § 11-4.1 — a carve-out that does not by its terms reach lodging.
What a Risk Acknowledgment Is Actually Doing
If a release does not work, owners reasonably ask what the point of the acknowledgment paragraph is. It is a fair question, and the answer is more interesting than “nothing.”
Assumption of risk survives in Virginia as a defense, and it works differently from a release. In Amusement Slides Corp. v. Lehmann (1977), the Court described the standard as “a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates,” requiring that the nature and extent of the risk be fully appreciated and voluntarily incurred. The Court put the contrast with a neighboring defense memorably: “Contributory negligence is carelessness. Assumption of the risk is venturousness.”
The limit in that case is the instructive part. The plaintiff was held to have assumed the risk of a fast trip down a steep slide — but not the risk that an employee would fail to perform the step that controlled his speed. The defense reached the activity. It did not reach the operator’s own separate negligence.
Because the standard asks what a particular person actually knew, a recital that a guest “assumes all risks” tells a court very little about that person. A disclosure naming a specific condition is a different sort of evidence. Whether it carries weight in any given case depends on the condition, what the guest understood, and how the disclosure reached them — which is exactly the kind of thing a general article cannot resolve.
Where That Leaves a Typical Agreement
| Provision | How Virginia has treated it |
|---|---|
| Release of the owner’s negligence causing personal injury | Void as against public policy under Johnson and Hiett |
| Release or allocation of property damage | Virginia decisions have upheld property-damage releases, as described in Hiett |
| Indemnity for losses the owner incurs | Enforced in Estes between arm’s-length commercial parties; application to an individual guest is not established |
| Written acknowledgment of a specific condition | Not a release; may bear on assumption of risk, which is measured subjectively |
| Requirement that a guest carry insurance | An agreement may address insurance; enforceability and practical effect depend on the wording, the transaction, and applicable law |
| Rules-compliance covenant | An ordinary contract term; effect depends on wording, assent, and the remedy specified |
When the Waiver Is Not the Interesting Question
There is a further consequence that owners tend to reach on their own once the rule sinks in. If a release is not available, then whatever duty you owe is what stands between you and a claim, and that question has its own Virginia answer.
Haynes-Garrett v. Dunn (2018) is the case, and it involved a beach house rented for a week rather than a business open to the public. The occupant argued the owners owed her what an innkeeper owes a guest, or at least what an owner owes an invitee. The Supreme Court of Virginia held that on that record the owners owed only the duty a landlord owes a tenant, which in the absence of concealment or fraud as to a known defect is considerably narrower. The Court also noted that an occupant of premises cannot at the same time be an invitee, which unsettles a good deal of the familiar language about ordinary care.
The result depended heavily on facts about presence and control during the stay, so it is not a rule that lands the same way on every operation. What it does mean is that the interesting questions in a guest injury claim are often about what you knew, what you disclosed, and how the property is actually run. Those are questions about records rather than about drafting, and they are worth working through separately. Which is frequently where a conversation that started with a waiver ends up going.
The Questions Worth Sitting With
If you are looking at your own agreement, these are the ones that tend to open things up:
- Does the agreement lean on a release of personal injury claims — and if that provision were set aside, what would be left doing the work?
- Does it treat personal injury and property damage as one thing or two?
- If there is an indemnity provision, who is it written against, and in what terms?
- Are the actual conditions at the property disclosed specifically, or covered by a general recital?
- What would the records show about inspection, maintenance, and when a condition was first reported?
- Was the document drafted with Virginia in mind, or adapted from something written elsewhere?
Most owners reading this have a particular agreement in mind, and usually a particular property. Those specifics are exactly what an article cannot reach — the wording you are actually using, how guests receive it, what prompted the question in the first place. Those tend to be shorter conversations than people expect, and a Virginia attorney can look at the actual documents and facts with you.
This article is general information only and is not legal advice. Laws change and individual circumstances vary, and outcomes depend on the specific facts of each situation. Do not rely on this article to make decisions about your specific situation; contact Valley Legal or a licensed Virginia attorney to discuss your case. Reading this article does not create an attorney-client relationship, nor does contacting our office through this website or any other means. Attorney advertising.
Valley Legal, PLLC is located at 107 Pepper St SE, Christiansburg, Virginia 24073, and serves the communities of the New River Valley of Virginia, including Montgomery County, Blacksburg, Radford, Pulaski County, Floyd County, and Giles County.