Enforceability of liability waivers to protect against COVID-19 claims

• Published date: 05 June 2020
• Subject Matter: State of Emergency,Litigation Strategies,Dispute Resolution,Emergency Response,Coronavirus/COVID-19
• Author: Kimberly O'Donnell,Katie Jacobs,Yi Zhou,Briana Clark
• Law Firm: Dentons

In response to the COVID-19 outbreak in the United States, several state governments have ordered non-essential businesses to close their physical locations. As states relax their restrictions in the coming weeks and months, businesses that require person-to-person contact are facing enormous risks of potential liability for exposing their customers to the novel coronavirus. Although some states have enacted laws that provide essential businesses with limited immunity from civil liability for claims asserted by customers for injuries or death caused by coronavirus exposure, it is not clear whether such protection applies to all businesses or whether states will provide a similar liability shield from COVID-19 suits to all businesses.

Generally, businesses may seek liability waivers to minimize the risk of death or serious injury in inherently dangerous activities such as downhill skiing, jet skiing, boating, or whitewater rafting. In addition, some courts have enforced liability waivers that shield an entity from liability, including the entity’s own negligence, in more general contexts, such as participation in university classes or membership at a gym.

Due to the global COVID-19 pandemic, businesses, especially those that hold events, attract large groups of customers, or require person-to-person contact, may seek to protect themselves against future coronavirus exposure claims (i.e., claims that a customer contracted COVID-19 while on their premises).

This Alert provides a brief overview of basic legal principles governing enforcement of liability waivers for ordinary negligence,¹ which may be instructive for parties seeking to enforce COVID-19 liability waivers. Also provided are practical, high-level considerations for drafting a traditional waiver of liability, which should be similarly considered in drafting a COVID-19 waiver. Ultimately, whether a liability waiver is appropriate will depend on a number of factors, including the specific principles applied in the relevant jurisdiction.² While the below information may be helpful in understanding whether a COVID-19 liability waiver might be deemed enforceable generally, this Alert is not a substitute for legal advice about each business’s specific situation in the wake of COVID-19. Laws and policies are constantly evolving as the health crisis develops and economic concerns are balanced. Each state enforces liability waivers differently.

By and large, the purpose of a liability waiver is to provide businesses with a cost-effective approach to protect against potential liability related to claims of serious injury or death. Although liability waivers are fairly routine in some contexts, it is unclear whether a COVID-19 waiver relieving a business of liability for exposure claims would be enforceable. This is due to the unprecedented nature of COVID-19, the rapidly evolving information about the virus, and the absence of a vaccine.

Three states—Louisiana, Montana and Virginia—disallow liability waivers entirely. Other states’ laws vary between lenient and strict requirements for enforceability, and most jurisdictions have adopted specific tests for considering whether a waiver is enforceable. In New York, for example, a liability waiver is enforceable if: (i) it does not violate public interest, (ii) the intention of the parties is expressed in unmistakable...