Does your Virginia business provide activities that pose a meaningful risk of physical injury such as horseback riding, fitness classes, recreational sports, camps, or similar customer-facing services? Does your business rely on customer “waivers” of liability to manage the risks inherent in such activities? That instinct is understandable. A written agreement that warns customers of danger confirms that participation is voluntary, and states that the customer accepts responsibility for injuries sounds like it should provide strong legal protection if something goes wrong. In the Commonwealth of Virginia, however, the legal picture is more complicated.

Unlike many other states, Virginia historically has not recognized the enforceability of pre-injury waivers of liability for personal injury claims based on future negligence. That means a business cannot simply rely on broad “I release you from all liability” language and be confident that it will defeat a later personal injury or wrongful death claim. That has been the key lesson of Virginia waiver law for decades and was the takeaway from the Supreme Court of Virginia’s 1992 decision in Hiett v. Lake Barcroft Community Association. It remains a critical risk factor for Virginia businesses today.

That is why the related doctrine of assumption of risk carries outsized importance in Virginia. A recently published decision from the Court of Appeals of Virginia, Post v. The Pines Horse Farm and Sanctuary, LLC, underscores the point. The case involved a horseback riding lesson, a signed “Horse Riding Agreement and Liability Release Form,” and a rider who alleged that she was injured after the horse tack she had been using broke. The Court of Appeals reversed summary judgment in favor of the horse farm, holding that the rider’s general acknowledgment that she could be injured falling from a horse was not enough to establish that she had expressly assumed the specific risk allegedly causing her injury – receiving faulty tack. For Virginia businesses, Post is not just a horseback riding case. It is a warning about drafting your customer waivers.

Why Ordinary Liability Waivers Are Not Enough in Virginia

In many jurisdictions, a business may be able to obtain a valid pre-injury release from a customer that bars ordinary negligence claims. Virginia is different. Virginia courts have long taken the position that prospective releases of personal injury claims for future negligence are contrary to public policy. The concern is straightforward: allowing a business to contract away liability for its own future negligence may leave an injured person without legal recourse and may reduce the business’s incentive to use ordinary care toward its customers.

That does not mean customer release agreements are useless. Far from it. A well-drafted customer agreement can still serve important risk mitigation purposes. But businesses must be precise and comprehensive in warning customers about all activity-related risks. In Virginia, a document simply titled “Waiver of Liability” may not operate as a true waiver of negligence claims for personal injury following the reasoning of Post and Hiatt. A stronger defense to potential liability is to be able to establish that the customer knowingly and voluntarily assumed the particular injury-causing risk.

Assumption of Risk Can Be a Complete Defense

Under Virginia law, assumption of risk can operate as a complete bar to recovery in a negligence case. The defense generally requires proof that the injured person:

1. Fully appreciated the nature and extent of the risk; and
2. Voluntarily chose to encounter that risk.

While that sounds simple, in practice, it is often highly fact dependent.

Virginia courts focus on the particular risk that caused the injury, not just the general risks associated with the activity. For example, a customer may well understand that horseback riding involves a risk of falling from a horse. Similarly, a gym member may understand that lifting weights involves the risk of muscle strain, or a participant in a ropes course may understand that heights can be dangerous. However, those acknowledgments of general risk may not be enough to establish that the customer also assumed a different, more specific risk, such as defective equipment, negligent supervision, unsafe premises conditions, or a failure to follow the business’s own safety protocols. That distinction is where Post matters.

What Happened in Post

In Post, the rider signed a release form before participating in a horseback riding lesson. The release form warned that serious injury could result from riding horses and that the farm did not guarantee the rider’s safety. It described the size, strength, and unpredictability of horses. It warned that a horse may stop short, change direction, buck, rear, kick, bite, or run from danger. It also stated that a rider who falls from a horse may be injured.

During the lesson, Post alleged that the tack she was provided by the horse farm broke, causing her to fall from the horse she was riding and suffer injury. She claimed that the horse farm failed to maintain the horse tack, failed to supervise and advise her properly, and failed to warn her of the defective condition of the horse tack. The horse farm argued that Post had signed a release of claims that barred her lawsuit. The trial court agreed and granted summary judgment in favor of the horse farm.

The Court of Appeals reversed the trial court’s decision, concluding that the actual risk of injury to Post was not merely “falling from a horse.” It was the alleged receipt of faulty tack. Because the horse farm’s release form did not expressly identify that risk, the rider’s general acknowledgment that she might fall and be injured was not enough. A broad statement that falling from a horse is possible did not amount to an express assumption of every negligent act or omission that could lead to a fall. That is the key takeaway from Post: general risk language may not be enough to shield a business from liability.

Virginia’s Horseback Riding Statute Does Not Save Sloppy Drafting

Horseback riding cases are somewhat unusual because Virginia has a specific equine activity statute. Virginia Code § 3.2-6202 limits liability for injuries or deaths resulting from the intrinsic dangers of equine activities, and it addresses waivers and assumption of intrinsic risks. But Virginia Code § 3.2-6203 preserves liability in certain circumstances, including where an equine activity sponsor commits negligence causing injury unless the participant expressly assumed the risk causing the injury. That statutory framework gave the court in Post a direct reason to ask whether the rider had expressly assumed the risk that caused her injury. The answer was no.

Businesses outside the equine context should not dismiss Post as irrelevant. The opinion reflects a broader Virginia legal principle that assumption of risk is tied to the specific danger the plaintiff actually understood and voluntarily encountered. A customer release agreement that lists only generic dangers may leave the business exposed to liability when the injury allegedly arises from a more specific operational failure.

What Virginia Businesses Should Do Now

Businesses should review their customer-facing risk documents carefully. A recycled form pulled from the internet, copied from another state, or labeled as a “general release” is not enough. A stronger Virginia agreement should do several things.

First, it should separate unenforceable waiver concepts from assumption-of-risk language. Businesses can still include release language where appropriate, but they should not depend on that language as the primary defense to a Virginia personal injury claim.

Second, it should identify the specific risks inherent in the activity. For a horse farm, that may include falling, sudden movement of the horse, unpredictable animal behavior, uneven ground, weather conditions, tack movement, and other equine-specific dangers. For a fitness facility, it may include equipment use, exertion, impact, slipping, falling, dropped weights, and participant misuse. The list of risks should be tailored to the specific business.

Third, and most importantly after Post, businesses should consider whether the agreement addresses risks that may be alleged later as the actual cause of injury. That does not mean a business can insulate itself from negligent maintenance or unsafe operations by magic wording. It cannot. But carefully drafted language can help establish what the customer knew, understood, and accepted before participating.

Fourth, the document should be clear, prominent, and understandable. Dense legal verbiage may undermine the very point of the agreement. The goal is not to bury the customer in fine print. The goal is to make the risks clear enough that the business can later show the customer actually understood them.

Finally, the agreement should be paired with sound business operations. Assumption-of-risk language is not a substitute for safe equipment, trained staff, inspections, warnings, supervision, maintenance, incident reporting, and compliance with applicable federal, state, and local law. A strong form may help defend a claim. It will not fix a bad safety program.

The Bottom Line

The Post decision reinforces a practical reality for Virginia businesses: because Virginia does not generally enforce pre-injury waivers of liability for personal injury claims based on future negligence, assumption of risk often becomes a key defense to liability. Assumption of risk is not automatic. It depends on what the customer actually knew, appreciated, and voluntarily accepted. Post is an important reminder that Virginia businesses must assume that courts will look closely at whether the customer expressly assumed the specific risk that allegedly caused the injury, not merely whether the customer signed a broad release form acknowledging that an activity could be dangerous. Virginia businesses that use customer waivers, releases, participation agreements, or assumption-of-risk forms should have those documents carefully drafted and periodically reviewed by a Virginia attorney. The wording matters. The risks identified matter. And after Post, the level of specificity may matter more than ever.

If you have questions about customer waivers, assumption-of-risk language, or risk management for your Virginia business, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.