Some business owners are seeking protection from coronavirus-related lawsuits by requiring that customers sign liability waivers before entering their establishments. Still, legal experts warn that such measures are not ironclad protections for the proprietors.
“If a company requires a customer to sign a waiver and the customer gets injured and decides to sue, can that customer’s lawyer get the waiver thrown out? The answer is, sometimes, yes,” said Walter Olsen, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies.
State laws vary in terms of the enforceability of liability waivers. In Virginia, liability waivers are generally unenforceable. In contrast, waivers in Florida are enforceable if they meet certain criteria, namely that the waiver’s language is clear, unambiguous, unequivocal, and specific.
But even enforceable waivers can be challenged in the courts, said Marc Lamber, head of the personal injury department at Fennemore Craig in Arizona.
“Even if a particular waiver is likely legally enforceable, in some jurisdictions like Arizona, the issue of whether a customer intended to relinquish a legal right will be a question for the jury, not the judge,” he told the Washington Examiner via email.
Business owners who take their cases to court can sometimes be surprised that issues beyond the law’s scope can decide the case. For example, Walt Disney World Resort, located in Orlando, Florida, requires that patrons assume coronavirus-infection risks when entering the Magic Kingdom. According to Olsen, the jury could view the trail as David versus Goliath and support David if that waiver were to get challenged in court.
“Disney is big, and you’re small,” he wrote. “So some of these factors that make courts throw [waivers] out, they don’t necessarily say [it’s in the law] but [the reasons] are hovering in the background so [the courts] will be more considerate to customers.”
Liability waivers also don’t shield owners who knowingly allow their establishments to become pandemic petri dishes, according to Devin Watkins, an attorney at the libertarian think tank Competitive Enterprise Institute.
“If you know your employee has COVID and you send them to interact with a customer, and they catch COVID, a lot of states say that can’t be waived,” he told the Washington Examiner.
Recent weeks have seen high-profile instances of potential negligence from owners who failed to keep customers from infecting one another while visiting their establishments.
Holiday revelers ignored social distancing rules and packed into a pool in Missouri’s Lake of the Ozarks resort over the Memorial Day weekend.
In Port Washington, Wisconsin, patrons crowded into a bar without objection from the proprietor.
For Watkins, a liability waiver is not an escape hatch for the owners.
“In most states, you can’t waive intentional, reckless, or grossly negligent conduct,” he said. “It’s not like, ‘I wasn’t aware. I should have been doing things a little better.’ … Any kind of waiver that violates public policy, we can’t allow you to waive this kind of tort liability.”
Olsen stressed that there are two sides to negligent behavior: Customers are equally required to think before heading into a potentially dangerous situation, such as drinking at a packed local bar or crowding into a pool.
“With COVID, there can’t be a person left in the country who hasn’t heard that COVID-19 is dangerous,” he said.
Liability waivers for the coronavirus are incredibly new, but as states reopen, Lamber expects that an increasing number of cases will go to court as customers return to their favorite restaurants or bars, become infected, and sue the owner for exposing them to the disease.
“As a personal injury lawyer already receiving calls about cases related to the transmission of COVID-19, I think we are bound to see a number of lawsuits around the country alleging customers contracted the virus at a business,” he said.
Despite customers being able to challenge the validity of a liability waiver, proving that they were infected at a specific business would be hard to prove.
“These cases will be very hard to win because the customer will need to prove not only that the company was negligent but that he or she actually contracted the virus at the business versus all the other sources of exposure,” Lamber said.
