In response to the COVID-19 outbreak in the United States, several state governments have ordered non-essential businesses to close their physical locations. As states relax their restrictions in the coming weeks and months, businesses that require person-to-person contact are facing enormous risks of potential liability for exposing their customers to the novel coronavirus. Although some states have enacted laws that provide essential businesses with limited immunity from civil liability for claims asserted by customers for injuries or death caused by coronavirus exposure, it is not clear whether such protection applies to all businesses or whether states will provide a similar liability shield from COVID-19 suits to all businesses.
Generally, businesses may seek liability waivers to minimize the risk of death or serious injury in inherently dangerous activities such as downhill skiing, jet skiing, boating, or whitewater rafting. In addition, some courts have enforced liability waivers that shield an entity from liability, including the entity’s own negligence, in more general contexts, such as participation in university classes or membership at a gym.
Due to the global COVID-19 pandemic, businesses, especially those that hold events, attract large groups of customers, or require person-to-person contact, may seek to protect themselves against future coronavirus exposure claims (i.e., claims that a customer contracted COVID-19 while on their premises).
This Alert provides a brief overview of basic legal principles governing enforcement of liability waivers for ordinary negligence, which may be instructive for parties seeking to enforce COVID-19 liability waivers. Also provided are practical, high-level considerations for drafting a traditional waiver of liability, which should be similarly considered in drafting a COVID-19 waiver. Ultimately, whether a liability waiver is appropriate will depend on a number of factors, including the specific principles applied in the relevant jurisdiction. While the below information may be helpful in understanding whether a COVID-19 liability waiver might be deemed enforceable generally, this Alert is not a substitute for legal advice about each business’s specific situation in the wake of COVID-19. Laws and policies are constantly evolving as the health crisis develops and economic concerns are balanced. Each state enforces liability waivers differently.
By and large, the purpose of a liability waiver is to provide businesses with a cost-effective approach to protect against potential liability related to claims of serious injury or death. Although liability waivers are fairly routine in some contexts, it is unclear whether a COVID-19 waiver relieving a business of liability for exposure claims would be enforceable. This is due to the unprecedented nature of COVID-19, the rapidly evolving information about the virus, and the absence of a vaccine.
Three states—Louisiana, Montana and Virginia—disallow liability waivers entirely. Other states’ laws vary between lenient and strict requirements for enforceability, and most jurisdictions have adopted specific tests for considering whether a waiver is enforceable. In New York, for example, a liability waiver is enforceable if: (i) it does not violate public interest, (ii) the intention of the parties is expressed in unmistakable language, and (iii) the provisions are clear and coherent. See, e.g., Gross v. Sweet, 400 N.E.2d 306, 309 (N.Y. 1979). Other states adhere to the same or similar requirements. See, e.g., Madison v. Superior Court, 250 Cal. Rptr. 299, 304 (Cal. Ct. App. 1988), as modified (Sept. 1, 1988) (liability waivers are enforceable in California if the release is clear, unambiguous and explicit in expressing the intent of the parties; the act of negligence that results in injury to the releasee is reasonably related to the object or purpose for which the release is given; and the release does not contravene public policy); see also Topp Copy Prod., Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993) (liability waivers are generally valid in Pennsylvania where the agreement does not contravene public policy, is between persons relating entirely to their own private affairs, and each party is a free bargaining agent to the agreement so that it is not one of adhesion).
In enforcing liability waivers, therefore, courts will analyze the specific language provided in the waiver against the applicable test specific to the jurisdiction. See, e.g., Madison, 250 Cal. Rptr. at 305 (release of liability signed by student of scuba organization was valid and enforceable against student where student was injured during scuba diving accident and the language of the agreement was clear and unambiguous); My Fair Lady of Georgia, Inc. v. Harris, 364 S.E.2d 580 (Ga. Ct. App. 1987) (exculpatory clause of health club membership agreement was valid and enforceable, and precluded suit by member who fell in shower, where clause relieved the health club from its own negligence and did not contravene public policy); Hinkal, 133 A.3d at 746 (gym membership agreement, containing waiver of liability clause, was valid and enforceable where contract did not violate public policy, was between a private individual and an entity, and did not address matters of interest to the public or state); Pruitt, 2011 WL 484248 at *3 (release of fitness center from any claim for negligence, as contained in membership contract, was valid and enforceable where terms of release were clear and unambiguous); Geczi v. Lifetime Fitness, 973 N.E.2d 801 (Oh. Ct. App. 2012) (liability release of health club was valid and enforceable where terms were clear and unequivocal, thus barring negligence claims); Terry v. Indiana State Univ., 666 N.E.2d 87 (Ind. Ct. App. 1996) (liability waiver signed by university student to participate in certain courses was valid and enforceable, and not void as a matter of public policy, where university had no statutory duty toward student and waiver was clear, unambiguous, and voluntarily signed by student).
In interpreting the language contained in an exculpatory provision, courts historically have considered the following guiding standards: (i) the contract language must be construed strictly, since exculpatory language is not favored by the law; (ii) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; (iii) the language of the contract will be construed, in cases of ambiguity, against the party seeking immunity from liability; and (iv) the burden of establishing the immunity is upon the party invoking protection under the clause. Topp, 626 A.2d at 99; see also Hinkal, 133 A.3d at 742 (citing the same). These requirements and considerations logically should likewise apply to liability waivers related to COVID-19 in each state. Specifically, if a waiver of liability might be enforceable in the context of COVID-19, businesses should (i) clearly state the potential risks of COVID-19 exposure even after careful preventative measures are taken, (ii) expressly state that the customer fully understands and is willing to assume such risks, and (iii) have the customer expressly agree to release the business from any claims in connection with COVID-19.
Because no court has considered whether a liability waiver is enforceable in the context of a pandemic, or whether such a waiver would be void as against public policy, it is unclear whether a COVID-19 waiver relieving an entity of liability for exposure on its premises would be enforceable. Historically, and as discussed above, liability waivers have been implemented to shield businesses from liability for inherently dangerous recreational activities—i.e., use of gym equipment, participation in a race or sporting event, etc. However, in the wake of COVID-19, day-to-day activities, such as going to the grocery store or seeing a movie in theaters, now have an increased level of danger. From a public policy perspective, it is possible that liability waivers in this context may be deemed enforceable so that these non-essential businesses can operate with some level of protection.
The guidance provided in this Article is a basic overview, with high-level advice. It should not be applied in the drafting of individual waivers without further consideration of the specific state laws and factual circumstances involved therewith. It is likely that COVID-19 waivers will be widely challenged by potentially exposed plaintiffs, furthering the need for situation-specific legal advice. For more information on this topic or advice on specific questions related to liability waivers for your business in the wake of COVID-19, please contact one of the key contacts or the dedicated Dentons lawyer with whom you work.
Most states will not enforce waivers intended to protect a business against liability for gross negligence, reckless conduct, willful/wanton conduct, or intentional acts. See, e.g., Pruitt v. Strong Style Fitness, 2011 WL 484248, *3 (Oh. Ct. App. Oct. 13, 2011) (“although an exculpatory clause to limit one’s liability due to negligence may be valid and enforceable, Ohio law finds that such a clause is ineffective where the party seeking protection failed to exercise any care whatsoever, where there was willful or wanton misconduct, or where the clause is against important public policy concerns, unconscionable, or vague and ambiguous”). Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction that creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. Hinkal v. Pardoe, 133 A.3d 738, 746 (Pa. Super. Ct. 2016).
While a 50-state survey is beyond the scope of this Alert, we focus here on some of the most populous states.
There are express limitations on such waivers for recreational activities, under N.Y. Gen. Oblig. Law § 5-326.
Businesses that primarily service minors may face greater risks in the COVID-19 era because liability waivers signed by or on behalf of minors are generally unenforceable, as minors are considered incompetent to enter into a valid contract. Thus, a business must carefully consider the specific parties from which it seeks avoidance of liability when drafting a waiver.