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Efficacy of Covid-19 Liability Waivers

9/2/20

By: Caleb Saggus

Liability waivers are not new, but Covid-19 is. As we try to venture back to some form of normalcy, the effects of Covid-19 remains a topic of legal uncertainty. The private sector is playing a part in shaping the legal parameters of responses to Covid-19 by in some instances requiring their respective patrons to sign liability waivers before obtaining offered services. 

As a contract, and because it relates to the relinquishment of the right to recover for tort-based claims, waivers are governed by state law. And, while most states adhere to similar general principles regarding waivers, outliers exist, and there are variations specific to particular states. The typical variations could be more pronounced in the context of Covid-specific waivers, and new variations could develop.  Thus, the extent to which a waiver will ultimately withstand scrutiny by a court will likely vary from state to state to some extent.

As a general proposition, however, waivers have limits, and this will likely remain true for Covid-19 liability waivers. Generally, waiver provisions for acts constituting gross negligence or intentional conduct are unenforceable, as are provisions that are overly broad. Therefore, businesses that use Covid-19 liability waivers should consider expressly identifying that the waiver covers claims related to injuries related to Covid-19 and are based on the business’ negligence.

Another nuance to consider is the effect if a patron refuses to sign a waiver. A court might be more inclined to find a waiver unenforceable as a violation of public policy if the service being denied based on a refusal to sign the waiver is for a more “essential” business rather than one of pure leisure or choice.

Perhaps more global in its effect on Covid-19 liability waivers is state legislation giving entities immunity for Covid-19 liability.  Such legislation may render waivers unnecessary—but that could depend on whether there is any gap in the legislation leaving a potential for liability that a waiver could fill. Indeed, many states have already enacted Covid-19 immunity legislation. For these states, waivers are likely hollow as far as protecting against liability but might nonetheless still be used by businesses to prevent frivolous lawsuits.

Ultimately, waivers may prove to have little practical significance in the litigation world given the likely difficulty in proving a Covid-19 liability lawsuit. This stems from the inherent difficulty in contact tracing and thus establishing causation.  Depending on the scope of evolution surrounding these issues, and whether a state has enacted Covid-19 liability immunity legislation, the extent to which Covid-19 liability waivers will be an effective protection from liability moving forward remains unclear.  What is clear is that for now it will depend on the various states and their respective legal regimes.

If you have questions or would like more information, please contact Caleb Saggus at [email protected].