Enter At Your Own Risk: State Legislation And Waivers To Protect Businesses Against Liability for the Transmission of COVID-19

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Introduction

As businesses operate amid the uncharted coronavirus (COVID-19) pandemic, they have started to face lawsuits brought by patrons claiming they contracted COVID-19 while on the business’s premises.  In fact, Princess Cruise Lines has faced multiple lawsuits from passengers alleging that it negligently caused the passengers to contract COVID-19 while aboard its ships.  Initial rulings in these cases show that patrons may face issues establishing causation in such claims.  Nonetheless, the fear of widespread liability related to COVID-19 has led Congress and many states to consider blanket liability immunity for all businesses.  Many states have issued either legislation or executive orders providing some form of liability immunity related to COVID-19.  However, a vast majority of this legislation relates to healthcare providers, essential businesses, and/or personal protective equipment (PPE) manufacturers.  Still, a few states have gone a step further and provided liability immunity for non-healthcare, non-essential, and non-PPE related businesses.  In the states that have not implemented liability immunity for businesses, some companies are requiring their patrons to sign liability waivers, attempting to shield the company from COVID-19 claims.  These waivers may provide businesses some measure of protection from negligence where the businesses are also in compliance with applicable COVID-19 regulations.

State Action Providing Businesses with COVID-19 Liability Immunity

States issuing legislation or executive orders providing liability immunity for non-healthcare, non-essential, and non-PPE businesses include, but are not limited to, Alabama, Arkansas, Georgia, Iowa, Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, Utah, and Wyoming.  The extent to which a business is immune and the requirements to maintain that immunity vary under each state’s statute.  But, these states generally do not extend immunity to gross negligence, recklessness, or intentional conduct.

Georgia: In Georgia, “no…entity, or individual shall be held liable for damages in an action involving a COVID-19 liability claim…unless the claimant proves that the actions of the…entity, or individual showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”  See. Ga. Code Ann. § 51-16-2(a).  

Alabama: Under Alabama’s executive order, a claimant must show “by clear and convincing evidence that the claimant’s alleged death, injury or damages was caused by the business’s…wanton, reckless, willful, or intentional misconduct.”  See State of Alabama Proclamation by the Governor (May 8, 2020).

Utah: In Utah, “a person is immune from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on, the premises owned or operated by the person, or during an activity managed by the person,” but “[i]mmunity…does not apply to (a) willful misconduct; (b) reckless infliction of harm; or (c) intentional infliction of harm.” See Utah Cod. Ann. § 78B-4-5187(2).

North Carolina: In North Carolina, “In any claim for relief arising from any act or omission alleged to have resulted in the contraction of COVID-19…no person shall be liable for any act or omission that does not amount to gross negligence, willful, or wanton conduct, or intentional wrongdoing.” See N.C. Gen. Stat. § 99E-71(a)

Mississippi: In Mississippi, a business may be immune unless “the plaintiff shows, by clear and convincing evidence, that a defendant, or any employee or agent thereof, acted with actual malice or willful, intentional misconduct.”  See S.B. 3049, 2020 Reg. Sess. (Miss. 2020), § 6(1)

Oklahoma: Oklahoma’s statute is silent as to the level of culpable conduct it covers, stating broadly that “[a] person or agent of the person who conducts business in this state shall not be liable in a civil action claiming an injury from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care of the person or agent was in compliance or consistent with federal or state regulations, a Presidential or Gubernatorial Executive Order, or guidance applicable at the time of the alleged exposure.” See S.B. 1946, 2020 Reg. Sess. (Okla. 2020), § 1(B). 

Iowa: Iowa’s statute is even more protective as it prevents potential plaintiffs from even filing suit unless the person has been diagnosed with COVID-19 and requires inpatient hospitalization or the diagnosis results in death, or the civil action involves an intentional act or is the result of actual malice.  See Iowa Code § 686D.3-686D.4.

Iowa’s act also contains a safe harbor provision similar to Oklahoma’s statute that provides that a person is not liable for damages related to exposure to COVID-19 “if the act or omission alleged to violate a duty of care was in substantial compliance or was consistent with any federal or state statute, regulation, order, or public health guidance related to COVID-19…” See Iowa Code § 686D.5.  

While a handful of states have enacted COVID-19 liability legislation to protect businesses from liability from COVID-19 exposure, most states have not followed suit yet, and businesses in these states continue to face potential liability exposure.  It is too soon to tell whether Congress will pass blanket liability protection; however, a viable option for companies seeking some protection is to have patrons sign liability waivers.

Liability Waivers to Protect Against COVID-19 Claims

As a threshold matter, the most prudent action a business can take in order to mitigate liability is to remain in compliance with all local, state, and federal regulations, orders, and guidelines related to COVID-19.  But, what happens if a business fails to exercise reasonable care, and a patron contracts COVID-19 on its premises?  Generally, a business owner has a duty to ensure that its premises are reasonably safe for invitees and is required to use reasonable care to learn of any dangerous conditions on its premises. See e.g., Johnson v. Morgan, 2013 WL 11272115 (Fla. Cir. Ct. April 30, 2013) (“In the context of premises liability, which is the essence of Plaintiff’s claim in this case where it is the condition of the Jail that Plaintiff asserts caused the decedent to contract the bacteria that led to the conditions that caused her death, a business owner has a duty to determine that its premises are reasonably safe for invitees, and is required to use reasonable care to learn of any dangerous conditions on its premises.) (citing Cain v. Brown, 569 So. 2d 771, 772 (Fla. 4th DCA 1990).  

Compliance with applicable regulations will help ensure a business is considered to have acted reasonably.  Even if a business faces claims by an infected patron, the patron will find it hard to establish causation due to the highly contagious nature of COVID-19 and the fact that transmission is difficult to trace.  Indeed, in California, U.S. District Judge Dale S. Fischer recently dismissed two actions against Princess Cruise Lines on the basis that the plaintiffs in each case failed to allege they had actually contracted COVID-19 while aboard Princess Cruise Lines’ ship.  See David Rumrill, et al. v. Princess Cruise Lines Ltd., et al., Case No. 2:20-cv-03317 and Pamela Wortman, et al. v. Princess Cruise Lines Ltd., Case No. 2:20-cv-04169.  While the court dismissed with leave to amend, the court’s decisions illustrate that establishing causation will be one of the heaviest burdens for potential plaintiffs. 

Nonetheless, until case law develops further in the courts, businesses may consider proactive steps to protect themselves from potential COVID-19 claims.  A properly drafted liability waiver may be a useful tool to limit liability exposure.

Enforcement of Liability Waivers

  1. Elements of an Enforceable Liability Waiver

While courts have not directly addressed the enforceability of a liability waiver in the context of a patron contracting a communicable disease on a business’s premises, the case law on liability waivers in other situations provides a reasonable expectation that a well drafted COVID-19 liability waiver may be enforced.  

Courts generally disfavor exculpatory clauses.  However, liability waivers shielding a party against liability for its own negligence have been found enforceable in most states where certain conditions are met.  Brooks v. Paul, 219 So. 3d 886 (Fla. 4th DCA 2017); Hague v. Summit Acres Skilled Nursing & Rehab, 2010 WL 5545386, at *4 (Ohio Ct. App. 2010); Evans v. Lima Lima Flight Team, Inc., 869 N.E. 2d 195, 201 (Ill. App. Ct. 2007).  The requirements for an enforceable liability waiver are state specific and vary from strict to lenient standards.  The general consensus is that in order for a liability waiver to be enforceable, the waiver must be:

  • Clear,
  • Unequivocal,
  • Conspicuous, and
  • Not against public policy.

That is, the waiver must be easily identifiable and understandable to the party against whom enforcement is sought and must not offend any public policy of the state in question. See e.g., Paralift, Inc. v. Superior Court, 23 Cal. App. 4th 748 (Cal. Ct. App. 1993) (“[A]s long as the release constitutes a clear and unequivocal waiver with specific reference to a defendant’s negligence, it will be sufficient.  For it to be valid and enforceable, a written release exculpating a tortfeasor from liability for future negligence or misconduct must be clear, unambiguous and explicit in expressing the intent of the parties.”) (internal quotations omitted) (internal citations omitted); Sanislo v. Give Kids World, Inc., 157 So. 2d 256 (Fla. 2015) (“Exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away.”); Hague, 2010 WL 5545386, at *5 (Ohio Ct. App. 2010) (“The pivotal inquiry is whether it is clear from the general terms of the entire contract, considered in light of what an ordinary prudent and knowledgeable party of the same class would understand, that the proprietor is to be relieved form liability for its own negligence.”); Evans, 869 N.E. 2d at 203 (“An exculpatory agreement must contain clear, explicit, and unequivocal language referencing the type of activity, circumstance, or situation that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care.  However, the parties need not have contemplated the precise occurrence which results in injury.  The injury must fall within the scope of possible dangers ordinarily accompanying the activity and, therefore, reasonably contemplated by the parties.”) (internal citations omitted).  

The factual circumstances surrounding the waiver will be key in determining whether the waiver offends public policy.  A liability waiver from a business with a recreational purpose (i.e., movie theatre, bowling alley, gym, etc.) is more likely to be considered enforceable compared to a liability waiver from an essential business (i.e., doctor, dentist, public services, etc.).

  1. States Refusing to Enforce Liability Waivers

While the majority of states enforce liability waivers under certain circumstances, three states, Virginia, Montana, and Louisiana, have refused to enforce such liability waivers where physical harm results.  See Hiett v. Lake Barcroft Community Assoc., 418 S.E. 2d 894 (Va. 1992) (holding hat pre-injury release of liability was void as against public policy); Mot. Code Ann. § 28-2-702 (“Except as provided in 27-1-753, all contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.”); La. Civ. Code Ann. art. 2004 (“Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.”).  In these states, a business’s best course of action will be strict compliance with all local, state, and federal regulations, orders, and guidelines related to COVID-19.  Interestingly, Louisiana is one of the states that has passed legislation providing COVID-19 liability immunity for businesses –  a somewhat surprising move for a state that does not enforce liability waivers.

The Importance of Drafting a Proper Liability Waiver

The importance of drafting liability waivers properly cannot be overstated.  Again, such clauses are disfavored by the law and generally construed against the party claiming to be relieved of liability.  For instance, in Brooks, 219 So. 3d 886 (Fla. 4th DCA 2017), the plaintiff brought a medical malpractice claim against various defendants following surgery.  The defendants moved for summary judgment based on the following purported exculpatory release the plaintiff executed prior to the surgery:

As of January 1, 2003, Dr. Michael D. Paul…will not carry any medical malpractice insurance. Being of sound mind and sound body, I hereby acknowledge this fact and agree not to sue Dr. Michael D. Paul, or the professional corporation of MacMillan Paul and Burkarth, P.A. for any reason. My reason for doing this is that I realize that Dr. Michael D. Paul and his staff will do the very best to take care of me according to community medical standards.

Id. at 891.  The Court found multiple issues with this provision and described it as “rife with ambiguity and uncertainty.” Id.  The court stated that while the first two sentences of the signed release were broad enough to encompass a negligence claim when read in isolation, the third sentence, which qualified the first two sentences, created an ambiguity.  Id. The court reasoned that “the language in the release could lead ‘a person of ordinary intelligence [to] believe that the release could most reasonably be taken merely as driving home the fact that the defendant was not to bear any  responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant.’” Id. (quoting Sanislo, 157 So. 3d at 271).  The court held that the release was unclear and ambiguous.

Drafting a Proper COVID-19 Liability Waiver

Businesses seeking to draft a liability waiver for COVID-19 should consider including the following:

  1. A conspicuous title in all CAPITALS, BOLDED and UNDERLINED;
  2. An acknowledgment that COVID-19 is a highly contagious disease most often transmitted from person to person;
  3. A clear statement of the risks associated with exposure to COVID-19;
  4. A clear statement that the business has taken preventative measures to limit the patron’s exposure to COVID-19, but that such preventative measures cannot guarantee the patron will not be exposed to or contract COVID-19 while on the business’s premises;
  5. A clear statement that the patron acknowledges the risks associated with exposure to COVID-19 and that the business cannot guarantee that the patron will not be exposed to COVID-19;
  6. A clear statement that the patron expressly intends to assume all risks associated with potential exposure to COVID-19 while on the business’s premises and releases the business from liability premised on negligence;
  7. Specific inclusion of the word “negligence”;
  8. A signature of the patron.

Where providing a written waiver to each patron is not realistic (i.e., grocery stores, shopping malls, restaurants, etc…), businesses should consider posting disclaimers containing similar language to a written waiver.  Such disclaimers should be posted in conspicuous places such as the entrance to the premises.  Although a disclaimer may not be as effective as a signed written waiver, it may still prove useful in limiting a business’s liability and support a defense of contributory negligence.

Conclusion

While courts may enforce a properly drafted liability waiver, such waiver will only protect a business from its own negligence.  Courts have consistently held that liability waivers seeking to shield a party from its gross negligence, reckless conduct, willful/wanton conduct, or intentional acts are unenforceable.  Opening a business to the public but failing to comply with local, state, and federal regulations, orders and guidelines may be considered grossly negligent given the known risks associated with COVID-19. A waiver, no matter how well drafted, may not protect the business absent its reasonable compliance with these measures.

* This article is intended to provide a general overview of the current state of COVID-19 legislation and the use of liability waivers/disclaimers in response to the coronavirus (COVID-19) pandemic. 

Reproduced with permission. Published September 21, 2020. Copyright 2020 The Bureau of National Affairs, Inc. 800- 372-1033. For further use, please visit http://www.bna.com/copyright-permission-request/

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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