PANDEMIC WAIVERS ARE THEY ENFORCEABLE?

Published on: June 9, 2020

Many condominiums and businesses are requiring waivers to use facilities as facilities are re-opened.  The question is are they legally enforceable.

The general rule is that waiver language ambiguities will be construed against the business seeking to enforce it.  So waivers should be narrowly and tightly drafted by your lawyer.

Second, courts are unlikely to enforce waivers of liability obtained by fraud or duress. States that do not favor waivers of liability may also consider the disparity of bargaining power between the parties.

Wisconsin, for example, will not enforce “take it or leave it” clauses, which force the individual to waive liability in order to be a guest or participate in an event. The Wisconsin Court of Appeals has stated that the “absence of an opportunity to bargain in regard to an exculpatory clauses’ terms is a significant factor suggesting a violation of public policy.” Essentially, some states will not enforce waivers of liability if the individual waiving potential claims cannot negotiate the terms of the waiver.  This obviously can be a concern with condominiums requiring waivers for use of common amenities like fitness centers or swimming pools, where they already either own or have a right to use the facility.

Third, courts will consider the public policy implications of enforcing waivers of liability and generally will not enforce waivers for gross or extreme negligence, wanton and willful misconduct, or conduct that violates a statute.

Courts must balance public safety interests with the freedom to contract and allow businesses to operate without a constant threat of litigation, especially in connection with inherently dangerous but popular activities like skiing and ice hockey. Again, states take a widely different perspective on where the line between allowing lawsuits for injuries sustained by participating in such activities and enforcing contractual waivers lies.

Post-Pandemic Waivers of Liability

In the wake of the first of what may be numerous surges in COVID-19 infections, will there be a corresponding surge in lawsuits asserting claims that businesses were negligent in their duties to protect the public from the virus? Aside from issues of duty and causation, everyday businesses, like retailers and restaurants and condominium associations, may start thinking about how they may utilize waivers of liability for virus claims. From a practical standpoint, implementation and enforcement may be difficult.

The first question to consider is how such waivers would be implemented in everyday consumer life. In certain circumstances, written waivers may make sense. A simple google search pulls up examples being used by businesses across the country, from YMCAs to golf courses to Disney.

On the one hand, where membership, reservations or check-in procedures are needed before using a facility or attending an event, such as booking a hotel or tee time at a golf course, it will be easier for businesses to obtain a written waiver ahead of such use (assuming the business’s jurisdiction would enforce the written waiver).

On the other hand, having patrons sign a waiver upon entry to a store or restaurant is probably not practical for a number of reasons. The process of signing a document involves contact with objects and surfaces, which is not ideal in the COVID-19 era. The process would also likely be distasteful to patrons. Would the store or restaurant ask people to leave if they chose not to sign the waiver? Would a line of people waiting to sign a form cause potential visitors to turn around? The written waiver option for certain businesses is likely not workable.

What about placing signs in windows and entryways notifying customers that they would be waiving liability for any claims arising from a COVID-19 infection by entering the premises? The signage option is practical and would be easy to implement, but raises the second question: Would courts enforce such disclaimers of liability for COVID-19 infections appearing in signs?

Signs that caution the public against certain dangers are common, but are not the same as contractual waivers of liability. Businesses do have a duty to warn their patrons of a dangerous condition on the property, such as a hole in the ground or a wet floor.

By displaying a clear warning of the condition, a business may satisfy its duty to warn, but that does not necessarily absolve the business of liability for injuries caused by the dangerous condition. Instead, it may allow a business to argue that the injured party contributed to the negligence by not heeding the warning or otherwise assumed the risk of injury.

Accordingly, placing a clear and conspicuous sign in the window or entrance of a store or restaurant warning customers of the danger of COVID-19 may not insulate a business from liability, but may assist in the defense of a negligence claim. The business may decide to include in the sign that it is following all government-ordered precautions to provide a clean and safe environment for its customers, that customers must follow certain protocols, such as social distancing and wearing masks once they enter the establishment, but that there is still an inherent risk of infection in being with other members of the public.

Given the extent to which the pandemic has affected the world and the general knowledge of how easily it spreads, courts will likely assign some level of responsibility for infection on plaintiffs who choose to enter a store or restaurant, whether there is a sign or not.

Conclusion

 Businesses and condominium boards should consult counsel about how courts in their jurisdiction treat waivers of liability and whether it would be practical to implement them as they start to reopen. If written waivers will not work, businesses can also consider a conspicuously placed notice or sign warning that the threat of COVID-19 exists regardless of the precautions. At minimum, businesses may be able to defend claims of negligence arising from COVID-19 infections by arguing that the plaintiff had a choice to enter the premises and assumed the risk of injury or illness by doing so.

Please contact your MEEB attorney if you have any questions regarding waivers.

 

 

Written by Ed Allcock

eallcock@meeb.com