Now that indoor fitness centers around the country are reopening, fitness facility operators are concerned about potential liability for COVID-related illnesses. This is because even the most conscientious business operators can be blindsided by lawsuits — even meritless ones — that can go on for years. Understanding the risks around potential COVID liability and the various methods of minimizing those risks is a business imperative.
MINIMIZING LIABILITY RISKS
Typically, businesses are sued if an injury to a guest results from a failure to exercise the care a prudent business operator would exercise in protecting the guest — that is, the standard of negligence. Another requirement is that an injured plaintiff must prove that it is more likely than not that the injury was caused by that negligence — a requirement known as causation.
As to the negligence standard, most business operators are reasonably protected if they follow federal, state, and local requirements and guidelines regarding when they may reopen and the precautions that must be taken around reopening. Reasonable precautions such as machine and weight-station spacing, frequent cleaning, limiting the number of patrons at any given time, use of plexiglass, increased hand-sanitizing stations, temperature checks and health screenings before entry, the requirement of mask-wearing, and signs reminding patrons to social distance are all means of demonstrating prudence and reasonable care in attempting to maintain a safe environment for their patrons. It is important that these practices be monitored and enforced by the business operator; nothing invites liability more than establishing prudent measures (that is, showing knowledge of the standard of reasonableness) and then failing to enforce them. Evidence of that enforcement should be added to the daily record-keeping of the facility — for example, by keeping logs of the frequency of equipment cleanings and pass-through inspections to see that measures are being enforced. While not an absolute shield to a potential lawsuit, the ability to demonstrate reasonable care on a consistent, documented basis goes a long way to avoiding liability.
With respect to the causation element, plaintiffs who become sick and seek to hold a careful business operator liable may face an additional uphill battle, as it may be close to impossible to prove that the illness came from activities in the fitness facility. Given the prevalence and infectiousness of the disease, a patron may be unable to show that it is more likely than not that the infection came from the facility rather than from the walk or bus ride to the facility, or a dozen other seemingly innocent activities. Of course, if a business operator ignores or fails to enforce the precautions described above — for example, permitting tight groupings of patrons — a plaintiff might be able to convince a jury that such activities made the fitness facility a likely candidate of the source of the infection. Alternatively, if a significant number of patrons contract the virus, a plaintiff may convince the jury that the facility was a “hot spot.” A plaintiff does not have to prove causation beyond a reasonable doubt — just that it was more likely than not that the cause of the infection was the facility or activities in the facility. Likewise, if a business operator fails to take reasonable precautions to ensure that employees or patrons known or likely to be infected remain out of the facility, a plaintiff’s burden is eased if he or she can point to evidence of an infected person’s presence at the facility before or at the same time the plaintiff visited. Although local labor laws and laws regarding consumer privacy should be consulted, requiring employees and patrons to sign documents (or better yet, complete paperless, touchless, app-based verifications) before each shift or visit attesting that they are not aware of being infected or of having been in the company of persons known to be infected — and maintaining that documentation — is strong evidentiary support that a patron’s illness did not come from the facility.
Given the twin standards of negligence and causation, business operators are reasonably protected from COVID liability if they take the precautions outlined above. This is why there have been relatively few lawsuits up to this point other than against cruise lines or senior-living facilities, where there have been numerous instances of infection and allegedly lax standards and procedures with respect to protecting patrons.
THE USE OF WAIVERS
The requirement that guests sign (or electronically affirm) waivers is another method of minimizing the risk of potential liability for COVID-related illness. Once reserved for businesses that offer sky diving, rock climbing, or triple-diamond ski slopes, waivers are now becoming increasingly common among hair salons, presidential rallies, and stock exchange trading floors. The enforceability of waivers varies by state law — for example, North Carolina, Louisiana, and Montana do not enforce waivers signed before the signor becomes aware of their injury. And no waiver can shield a business from liability for reckless, grossly negligent, or intentional conduct. Although there have been no cases testing the general enforceability of waivers for COVID-related illnesses, it is likely that, in most states, a carefully designed waiver can further minimize the risk of lawsuits related to such illnesses. Such waivers should include:
A description of the risk: A person cannot waive a risk of which they are not aware. Accordingly, while it would be hard to imagine a person unaware of the global pandemic, it is important that any waiver make plain, among other things, that while the facility is taking precautions, it is impossible to protect patrons from potential infection given the nature of the activity, the infectiousness of the disease, and the fact that it can be carried by symptom-free patrons who are unaware themselves of their infection and thus may be undetectable. Notably, if a business operator learns that a patron who was infected recently visited the facility, that should be disclosed (in an anonymous manner) along with the steps taken to remediate the premises to ensure maximum enforceability of the waiver.
Acknowledgement of the standards being followed: A knowing waiver requires that the patrons understand, at least generally, what precautions the facility is taking to enhance their safety and what regulations and guidelines the facility is following. Stating the facility’s compliance with federal, state, and local regulations and guidelines applicable to fitness facilities, as well as generally describing the precautions followed and enforced further enables the patron to evaluate the risk they are assuming and waiving.
Clarity about what the patron is waiving: Although final language should be designed with legal counsel, it is imperative that the waiver very simply, clearly, and vividly state that the patron is waiving any and all rights to bring any lawsuit against, or to otherwise hold liable or responsible, the owner and all of the owner’s employees, directors, officers, members, shareholders, agents, and insureds for any illness or death caused by COVID-19. Clarity and simplicity are key here, and it is not uncommon for this section to be capitalized and bolded. Waivers typically include that the signor is waiving on behalf of themself as well as all family members, spouses, and heirs.
Minimizing potential liability — and ensuring that your patrons are fully aware of the risks and the measures you are taking to minimize that risk and to attempt to protect them — is a business imperative during this period of gradual reopening. And let’s be clear: one way in which fitness facilities will compete from now on is by letting their patrons know about the precautions they’re taking. That will be a selling feature potentially even more important than accessibility or the quality of the trainers, classes, and equipment. While local laws and counsel should be consulted regarding the steps above, they provide some guidance regarding a safe operation that minimizes the potential for COVID-related liability.