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Waiver of Liability and COVID-19

6/2/20

By: Michael Bruyere and Kathleen Cusack

As all 50 states begin easing restrictions related to COVID-19, businesses will be seeking ways to limit not only their employees’ and patrons’ exposure to the virus but also any potential liability stemming from the virus. One tool some businesses are using to try to limit their liability arising from COVID-19 is a waiver. By requiring employees and/or customers to sign a waiver of liability, businesses seek to shift the responsibility associated with contracting COVID-19 to the individual rather than the business.

While a few states will not enforce liability waivers, most jurisdictions in the United States will enforce waivers for liability arising out of negligent conduct. However, most jurisdictions will not enforce waivers of liability that seek to waive liability arising out of intentional, reckless, or grossly negligent conduct. What behavior would meet the threshold for recklessness or gross negligence remains unclear. In a recently filed lawsuit, the family of a passenger on the Grand Princess cruise ship allege that the cruise line was grossly negligent in exposing passengers to risk because it added additional passengers after people on board exhibited symptoms of the virus and the cruise line knew of the potential exposure. The lawsuit claims that passengers were not informed of any risk of exposure and that the cruise ship failed to enact sanitary procedures until about two weeks after passengers exhibited symptoms. (Case No. 2:20-cv-04074).

Where waivers are enforceable, they must be drafted in a manner that guarantees that customers will understand the risks associated with the services and the rights that they will waive.  Waivers also must be written in such a way that they are concise and plainly evident, i.e. not buried in a long document. 

Waivers of liability are common for certain types of businesses, such as gyms, but are less common and perhaps even impractical for many other types of businesses. For instance, while theme parks more commonly have waivers of liability that could be electronically communicated, smaller businesses such as grocery stores and hair salons may not. In addition, a physical waiver form may be impractical because the process of signing the waiver would require contact with objects, which is incongruous with common COVID-19 safety recommendations. Businesses could also warn patrons of a potential risk of contracting COVID-19 by using signs similar to wet floor signs. While signs would not necessarily limit a business’s liability, it might help establish that patrons were aware of the risk of exposure to the virus while on the premises.     

Despite a lack of clear understanding of how courts will interpret COVID-19 liability waivers, businesses across the country will likely try to implement waivers in addition to safety precautions to minimize the risk of exposure for employees and patrons. An example of a COVID-19 liability waiver for the Falmouth Country Club in Massachusetts in part reads “I acknowledge and fully assume the risk of illness or death related to COVID-19 arising from my being on the premises and participating in the Activities and hereby RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE (on behalf of myself and any minor children form whom I have the capacity contract) [the business]. . . .” Disney World Resort now also mandates that visitors sign COVID-19 liability waivers. Some businesses have even started mandating that employees waive potential liability stemming from exposure to COVID-19 while at work. While these liability waivers are controversial, many businesses see them as a necessary step in reopening.  

If you have questions or would like more information, please contact Michael Bruyere at mbruyere@fmglaw.com or Kathleen Cusack at kcusack@fmglaw.com. 

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at coronavirustaskforce@fmglaw.com.

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