Chances are you have signed a liability waiver in your lifetime—perhaps prior to participating in an extreme sport or joining a local gym. But odds are you have not been asked to sign one before going shopping, dining at a restaurant, or getting a haircut. Until now.
As states gradually reopen, businesses, school districts, and universities across the country are implementing mandatory COVID-19 liability waivers in an effort to insulate themselves from a potential onslaught of negligence lawsuits related to COVID-19 exposure. For example, a school district in South Carolina is requiring parents, as part of the student registration process, to sign an agreement that states:
By signing this agreement, I acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that my children and I may be exposed to or infected by COVID-19 by attending and/or participating in sports-related activities in connections with the District’s schools. . . . I understand and agree that this release includes my claims based on the actions, omissions, or negligence of the district, its employees, agents, and representatives, whether a COVID-19 infection occurs before, during, or after participation in any school-related activities.
“First and foremost, it’s important to remember that waiver or not, claiming injury is a one to one proposition,” says Jeffrey Kroll, Partner with Kaveny + Kroll Trial Lawyers (www.kavenykroll.com) in Chicago. “In other words, if you are affected by Covid through contact with a business or organization, the liability would only apply to you, not whomever else you would pass along the virus to.”
A school district in Missouri is requiring parents who want to their child to play a school sport to sign a similar waiver releasing the district and its employees and agents “from any and all . . . legal liabilities for” not only any “injuries” sustained by the child, but also “death.” Similarly, last month, the President of the United States’ reelection campaign required everyone attending a rally in Tulsa, Oklahoma to sign a waiver that stated: “By attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Donald J. Trump for President, Inc.; BOK Center; ASM Global; or any of their affiliates, directors, officers, employees, agents, contractors, or volunteers liable for any illness or injury.”
The NFL is reportedly considering requiring fans to sign a similar waiver to attend games. Colleges across the country have asked student-athletes to sign COVID-19 liability waivers absolving the college of liability if the player contracts COVID-19 when they return to campus. Two United States Senators have introduced legislation to prohibit colleges from using this practice.
The increasing use of these waivers raises important questions for individuals about the nature, scope, and effect of these waivers. Are they enforceable in court? If you sign one and then contract coronavirus due to the negligence of a business or school, would the waiver bar your claim for damages, or merely count as evidence against you—that is, evidence that you “assumed the risk” of contracting COVID-19? Because no court in the country has ruled on the enforceability of one of these waivers yet, answers to these questions remain undetermined. Nevertheless, here are some things you should know before signing one of these waivers:
- Each state has its own laws regarding the enforceability of liability waivers. Three states—Louisiana, Montana, and Virginia—prohibit them entirely. All other states recognize and enforce them if certain requirements are met, though some states apply these requirements strictly while others apply them moderately or leniently.
- On the whole, courts tend to impose three basic limits on liability waivers. First, courts generally hold that you cannot assume risks of which you are entirely unaware. For this reason, before enforcing a liability waiver, courts will typically check that the language is clear and comprehensible and unmistakably sets forth the parties’ intent and the terms and effect of the agreement. Given the widespread coverage of the global coronavirus pandemic, a court would likely be hard pressed to credit an argument that an individual did not understand the risks contemplated by a waiver discussing “COVID-19 exposure.”
- A second general limit on liability waivers is that courts typically require that risks be assumed voluntarily rather than involuntarily or without a real choice in the matter. For this reason, a supermarket outside a city center could not require all shoppers to sign a liability waiver before buying food. However, this limitation may not apply in the case of a hair salon, for example.
- Third, courts generally will not enforce a liability waiver that violates public policy. For this reason, most states decline to enforce liability waivers purporting to shield an entity from liability for gross negligence, reckless conduct, willfull/wanton misconduct, or intentional torts.The general rule is that a liability waiver can shield an entity from liability for only its negligent conduct—that is, failing to act with reasonable prudence under the circumstances. Of course, there is some variation in the particulars of these limitations across states, and in courts’ willingness to enforce them.
- In Illinois, liability waivers are enforceable, though disfavored by courts. This means that Illinois courts will generally enforce liability waivers as a bar to suit so long as they clearly spell out the intention of the parties and do not violate public policy, but will, in evaluating whether a waiver satisfies these requirements, strictly interpret the language of the liability waiver against the party seeking to enforce it. In simpler terms, the tie usually goes to the party seeking non-enforcement. As in other states, if a waiver is upheld, it will apply only to ordinary negligence.
- Do courts typically enforce liability waivers signed by minors? Most states will treat such a waiver as enforceable but voidable, meaning that the other party can enforce the contract unless the minor voids the contract before he or she reaches the age of majority (which is 18 in all but three states, including Illinois). The reason is that most states hold that a minor lacks the capacity to contract. An exception exists where a minor contracts for necessities such as food, shelter, or medical care, which courts will generally enforce.
- What about liability waivers signed by a parent or guardian on behalf of a child? Most states do not enforce such waivers, though some states recognize an exception to this rule where the parent-signed waiver relates to a public school, municipal program or voluntary extracurricular program. Courts often uphold such waivers out of a recognition that these programs might not exist without such protection from liability. For this reason, we may see more school districts implement mandatory liability waivers in connection with extracurricular activities and sports programs.
What This Means for You:
The bottom line is that you should not take COVID-19 liability waivers lightly. Treat them with the respect they deserve. If a business is asking you to sign one before letting you on its premises, understand you are not required to sign the waiver. It is your choice. At the same time, recognize that the business may deny you services.
Treat these waivers properly by taking the time to read them carefully. If a waiver clearly states the risks you are assuming and the rights you are relinquishing (such as the right to sue), understand it is possible that that waiver may be enforced by a court to bar any claim you might have otherwise brought against the other party to the agreement.
The information contained herein is not a substitute for legal advice. As specific questions arise, do not hesitate to contact us at Kaveny + Kroll Trial Lawyers, www.kavenykroll.com.
Zachary Hofeld is a Trial Attorney with Kaveny + Kroll Trial Lawyers. Hofeld graduated from the University of Minnesota Law School. During that time, he served as Managing Editor of the Minnesota Journal of International Law, advanced to the William E. McGee National Civil Rights Moot Court Championship, earned his M.B.A. degree, and briefed, argued, and won a prominent immigration appeal before the U.S. Court of Appeals for the Sixth Circuit. Jasso Arangure v. Whitaker, 911 F.3d 333 (6th Cir. 2018).
Hofeld spent his undergraduate years at Harvard, where he studied Government, led the Harvard Cancer Society, and played Varsity Baseball.