Pre-Injury Liability Waivers in the Virgin Islands
Likelihood of Enforcement: Moderate
The Supreme Court of the United States Virgin Islands, created in 2007, has yet to issue a decision directly addressing the enforceability of liability waivers in the territory. Prior to 2007, courts in the U.S. Virgin Islands—like those in Commonwealth of Northern Mariana Islands—had a statutory mandate to follow certain American Law Institute Restatements as the islands’ de facto common law. 1 V.I. Code Ann. § 4 (2000); See Co–Build Cos., Inc., v. V.I. Refinery Corp., 570 F.2d 492, 494 (3d Cir. 1978) (“When no precedents relate specifically to the adjudication of a Virgin Islands dispute, the courts are directed to turn to the various Restatements of Law . . . which are to provide the rules of decision for such cases ‘in the absence of local laws to the contrary.’”). Under this approach, enforceability of liability waivers in the U.S. Virgin Islands had been guided by Section 496B or the Restatement (Second) of Torts. See Etu v. Fairleigh Dickinson U. W. Indies Laboratory, Inc., 635 F. Supp. 290, 295 (D.V.I. 1986) (holding that terms of liability waivers should be “construed strictly against the defendant” because of language in Section 496B’s comment (d)).
Since 2007, the newly-formed Virgin Islands Supreme Court has overturned this Restatement-driven approach. It now looks to “three non-dispositive factors to determine Virgin Islands common law: (1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.” Govt. of Virgin Islands v. Connor, S.CT.CIV. 2013-0095, 2014 WL 702639, at *1 (V.I. Feb. 24, 2014) (internal quotations omitted)(citing Banks v. Int'l Rental & Leasing Corp., 680 F.3d 296, 299 (3d Cir. 2012). Additionally, the Supreme Court of the Virgin Islands is not bound by any local law precedents previously set by federal courts, including those precedents set during a time when the Third Circuit was the only source of binding authority construing Virgin Islands law. See Defoe v. Phillip, 702 F.3d 735 (3d Cir. 2012) (upholding authority of newly-created Virgin Islands Supreme Court to disregard Third Circuit and other precedents on questions of local law).
While uncertainty as to the direction of Virgin Islands’ common law remains, the territory’s trial courts have followed prior district court approaches. See, e.g.,Walker v. Virgin Islands Waste Mgt. Auth., SX-11-CV-353, 2015 WL 404007, at *3 (V.I. Super. Jan. 26, 2015). In its most recent cases on the enforceability of pre-injury liability waivers, the District Court of the Virgin Islands (an Article I federal court) has observed a “plain meaning rule” that “assumes that the intent of the parties to an instrument is . . . discovered only from the express language of the agreement.” See Delponte v. Coral World Virgin Islands, Inc., 2002-216, 2006 WL 2403331, at *2 (D.V.I. Aug. 14, 2006). This court has also held that the use of the term “negligence” suffices as a plain statement of intent to indemnify a party for its own negligence. Booth v. Bowen, CIV. 2006-217, 2007 WL 3124687, at *2 (D.V.I. Oct. 18, 2007); Delponte,2006 WL 2403331, at *2. Trial courts have also looked to the law of numerous other jurisdictions in an effort to “shape Virgin Islands common law” on specific questions. See Walker, 2015 WL 404007, at *3 (noting that “no court in the Virgin Islands has addressed [the] specific question of whether a parental guardian can waive a minor's pre-injury tort claims” and adopting an approach by examining “the position taken by a majority of courts from other jurisdictions”).
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.