As we cautiously exit shelter-in-place orders and life returns to some semblance of normalcy, the effects of the coronavirus pandemic will continue beyond the virus itself. One area of growing concern is new legal issues and claims. Given the lawsuits filed already by consumers, it is likely that such claims will include an allegation that a customer contracted the virus from a business, including potentially a rental facility or vehicle.
Part One of this article provides a general overview of the types of claims that might be filed by customers and the role a waiver might play for such claims. Part Two discusses the current status of federal and state legislation and includes references for guidelines on developing sanitization and other procedures to address the coronavirus risk.
Note: This article does not address employment law issues.
Potential Claims by Consumers
The ultimate viability of claims based on alleged exposure to the coronavirus remains to be seen, but there have already been a number of lawsuits filed against cruise ship operators. The complaints filed in those actions focus on allegations of negligence.
In essence, the plaintiffs argue that the cruise ship operators failed to take appropriate precautions to keep passengers and crew safe from the risks of COVID-19. The complaints vary but include a basic claim that the operators have a legal duty to ensure that passengers are not exposed to unreasonable risk of harm. The plaintiffs go on to allege that the operators breached that duty by not implementing appropriate COVID-19 mitigation procedures, and that passengers were harmed by contracting the virus as a result of that breach of duty.
As the crisis continues, the types of businesses targeted by such claims could broaden beyond the cruise industry. Similar to the cruise ship actions, the assertions of negligence will derive from an argument that the business operator has a duty to protect customers and somehow failed to implement appropriate precautions and procedures. The scope and application of such an alleged duty will be addressed by courts as the cases proceed.
Another legal theory that plaintiffs might try to advance is one based on premises liability. Many states have statutes that impose liability on owners (or lessees) of real property for injuries that occur on the property. For example, under a state’s premises liability laws, a person who owns or controls a premises may be found negligent for a failure to use appropriate care to keep the property in a reasonably safe condition.
Plaintiffs’ attorneys might also try to pursue claims-based misrepresentation. Various businesses are promoting the actions they are taking to protect customers. If a customer claims to have contracted the virus while at a business which promotes its safety measures, the complaint might include allegations of misleading and false advertising.
Misrepresentation claims often require proof that the defendant knew a statement was false at the time it was made (or was reckless about its truth); this element of the claim can be difficult to prove, especially where the business is acting in good faith.
Regardless of the legal theory advanced by a plaintiff, businesses defending such lawsuits will likely point to the significant proof challenges faced by a plaintiff. Someone traveling may have been exposed to the virus at one or more of many locations: the Uber ride to the airport, TSA line, airplane, coffee shop, hotel, etc.
Absent some sort of industrywide theory of joint liability (not a likely outcome), the plaintiff will need to prove the location and timing of the exposure that led to contracting the virus. This could be a very difficult if not insurmountable burden.
Additionally, the legislation discussed in Part 2 of this article could make these claims difficult to pursue.
Would a waiver by a customer insulate a business from potential COVID based claims? Setting aside the customer relations and operational issues, the viability of a waiver will vary based on a number of factors. For example, the location of the business is important. Some states treat liability waivers more favorably than others, and some, such as Connecticut, Montana, and Virginia may not enforce such waivers.
To be enforceable, waivers must be clear and unambiguous. Customers must be able to understand the risks associated with the services being provided as well as what rights are being waived. If the intent is to obtain a waiver for claims of negligence, that word or equivalent words should be used in the waiver.
Most states will not enforce a waiver of liability for willful and wanton conduct, reckless or intentional conduct, or for gross negligence. Gross negligence is usually defined as conduct which is an extreme deviation from the ordinary standard of care or a conscious disregard for the rights and safety of others.
Remember that waivers will not guarantee a claim will not be filed or survive an initial challenge. Waivers can be used as a defense and may even be a deterrent to someone considering a claim.
Drafting the Waiver
The following are some suggestions for drafting and implementing waivers:
- Make the waiver language conspicuous: Be sure that the language is easy to see and understand and that the provision clearly states what type of claims or damages are being waived.
- Keep the scope of the waiver reasonable: An overly broad liability waiver carries a risk of being unenforceable. For example, a waiver of liability for intentional conduct is likely not enforceable.
- Provide consideration: The law generally requires that both parties to a contract provide something of value to create a binding agreement. A customer’s ability to use services can often constitute valid consideration. In many states valid consideration can be allowing someone to enter a business and use the services or products provided.
- Beware posting by itself: To be enforceable, a waiver generally needs to be signed. Simply posting a waiver in your business, without more, may not be effective.
- Require signing before entering: For some businesses, the only viable option for using liability waivers would be to have visitors sign a document before entering the business. It is not clear at this point how such waivers will be treated by courts faced with COVID lawsuits.
It is likely that arguments related to duress and the lack of time to consider will be raised by claimants. On the other hand, liability waivers have long been used in the event and hospitality areas and anyone who has been river rafting knows that customers can be asked to sign liability waivers before embarking on a trip.
Part Two of this article will discuss federal and state legislative efforts to limit liability for COVID-19 claims and provide businesses with some certainty during these unprecedented times.
About the Authors
Leslie J. Pujo is an attorney with Plave Koch PLC in Reston, Va., focusing on mobility and vehicle use, as well as franchising. She can be reached at email@example.com. Wesley D. Hurst is an attorney in the Los Angeles office of Polsinelli and leads the firm’s Mobility & Vehicle Use practice. He can be reached at firstname.lastname@example.org.