By Sunnie Ning
Salons, movie theaters, gyms, churches — if you have been somewhere recently that is indoors or requires close personal contact, chances are, you have encountered a COVID liability waiver. But how enforceable are they?
Liability waivers, which stand at the intersection of torts and contract law, are a matter of state law. They have been on the rise as a contractual solution to tort problems since the 1980s, and are now common for recreational and sporting activities with higher-than-normal risks. However, no court has adjudicated on the enforceability of a COVID liability waiver yet, and the unique nature of the pandemic makes it difficult to predict how courts will rule.
Standard gym and health club waivers, operating outside the context of a pandemic, may provide insights into the enforceability of COVID waivers.
In a non-pandemic context, gyms present moderate, commonplace injury risks. At an exercise facility, injury risks can be a function of both the business’s and other users’ behavior, which is similar in nature to COVID-19 infection risk indoors. Also, in both cases, courts have to balance the interest of customers to have access to safe business premises, and the interest of businesses to avoid high litigation expenses.
COVID waivers likely will be subject to close judicial scrutiny based on public policy considerations. Public policy considerations are the first thing courts look at when determining whether liability waivers are enforceable.
Public necessities, such as utilities or common carriers, cannot shift their liability through waivers. For businesses of a less public nature, such as gyms and health clubs, a majority of courts tend to disfavor them and apply a rigid test regarding waivers’ enforceability, although a minority of states favor the use of waivers as a matter of public policy.
Connecticut has concluded that all liability waivers for fitness clubs are against public policy, because they undermine the tort compensation system and public policy favoring participation in athletics and recreational activities.
For COVID waivers, although the actual responses of the courts are hard to predict, courts’ attitudes towards gym waivers are still a useful anchor. Courts must balance public health reasons disfavoring shifting liability with economic incentives to shield businesses, and especially small businesses, from unpredictable COVID lawsuits.
Even if they are found to be enforceable, courts will scrutinize the language of COVID liability waivers carefully.
Observing that liability waivers are frequently preprinted forms offered on a take-it-or-leave-it basis, some courts have held that waivers constitute unenforceable contracts of adhesion. That being said, finding waivers to be contracts of adhesion itself does not automatically lead to a finding of invalidity. It may be valid if the language in the waiver is clear, unambiguous, and sufficiently conspicuous to alert the signer that he is waiving his rights.
In addition, COVID waivers likely will only shield businesses from ordinary negligence.
Waivers cannot limit a business’s liability for gross negligence, recklessness, or intentional torts. But showing gross negligence, recklessness, or intentional tort is a high burden for plaintiffs in the context of gyms and health clubs.
Failing to apply the Red Cross lifeguarding standards, failing to implement industry standards for exercise equipment, and failing to provide protective gear for press machines have all been found to be covered by waivers as a matter of ordinary negligence.
However, the New Jersey Supreme Court has noted that if a club was aware of a defective piece of equipment and failed to take action, or if it dangerously or improperly maintained equipment, it would not be able to use a waiver to shield its reckless or gross negligence.
Applying this to the COVID context, business owners likely would be able to release their responsibilities for failing to implement certain COVID precautions through a waiver, but would not be able to deny liability for intentionally letting in a COVID-positive patron.
Even without a liability waiver, suing a business for negligence due to COVID infection presents other challenges. For example, without precise contact tracing, it would be difficult to prove that a patron contracted COVID at a specific business, for example, a movie theater. Moreover, legislative and executive actions have popped up in many states to preempt civil liability, making it hard for consumers, and even employees, to hold businesses liable for COVID-19 infection, although these protections are usually limited to ordinary negligence as well.