Published on: November 10, 2020
Among the many suggestions and documents MEEB drafted for our clients when the full impact of COVID-19 was realized was a waiver of liability. When confronted with the demands of the owners, many associations continued to leave their recreation facilities open; however, given all the unknowns associated with this virus and potential legal consequences should someone be able to prove that COVID was contracted from the use of a common facility, we believed (and continue to believe), that those people who wanted to use these facilities should release the Board and the Association from any potential liability for negligence. There was no established body of law dealing with COVID claims and we did not know how courts would treat any COVID related cases that came before them. Nevertheless, based on our experience, we felt that the best position we could place Boards in would be to require a contractual acknowledgment by these owners that they were “assuming the risk” of contagion and giving up the right to pursue an action against the Board for perceived negligence in maintaining these facilities.
Therefore, we were pleased to read an October 30 decision from the Commonwealth of Virginia which upheld the right of the Association to require an owner to sign a waiver of liability (called an” assumption of the risk” form in that case). The plaintiff homeowner had argued that the requirement to sign the form was an act which exceeded the power granted to the Association and that the Association had infringed on his property right. The Court did not agree. Rather, the Court recognized that the Coronavirus Pandemic presented “a unique and unprecedented safety challenge” and noted that use of the common area facilities “could lead to transmission of the virus.” Ultimately the Court upheld the Board’s authority to require the waiver as a condition for using the facilities.
While there have been no cases in Massachusetts discussing waiver of liability in relation to COVID, a recent Appeals Court decision, Brandt v. Davis, while not discussing COVID waivers, upheld the applicability of a team participation sports waiver to an injury suffered during practice. Such waivers as a requirement for participation in team sports are not new; however, the plaintiff in the Brandt was trying to establish liability for an injury sustained during practice rather than during the actual participation in the sport. It is a long-settled principle that participants in athletics owe, and are owed a duty of ordinary care, i.e. to avoid engaging in reckless conduct while engaged in the sport. The significance of the case for our purpose is that the Court affirmed that people can contractually waive liability and that these waivers, which seek to prevent an injured party from bringing a suit in negligence, are enforceable. The Court distinguished this from cases involving gross negligence where a party knew or should have known that there was a high due to high degree of risk of physical harm to another and nevertheless proceeds to act regardless of the risk. (We have never suggested that the waivers we have drafted could shield associations from liability for gross negligence.)
Of course, the issues of negligence and gross negligence are extremely fact specific. We have maintained all along that the waivers we drafted were the associations’ best line of defense against any such claims of negligence. However, given that these cases do turn on the particular facts involved which led to the harm, as always it is good practice to consult with an attorney rather than simply relying on some sort of boilerplate waiver that may have been used for previous activities at the condominium. Unfortunately, COVID cases continue to increase in Massachusetts and restrictions have been increased.
If your association does not have a COVID waiver or if you have questions about the necessity for having one, all of the attorneys at MEEB are able to advise on and draft a COVID liability waiver for your association.
If you have any questions regarding this article please contact Ellen Shapiro (email@example.com).
For a copy of the Decision [click here].