It is after Labor Day, which means football is back and slowly, schools are back in session. The return of school- and football- across much of the country this month has sparked a lengthy debate those of us in litigation defense and insurance fields are all too familiar with: what value is there in the protection of a liability waiver? The COVID-19 pandemic raises other questions about the legal impact, enforceability and practicability of such waivers.
Liability waivers are nothing new in the entertainment, sports, nursing home and insurance industries and their use was common in pre-pandemic life. Most parents who have enrolled a child in little league or gymnastics or almost any person who has bought a ticket to a sporting event have signed a liability waiver. In the COVID-19 age, the concept of having liability waivers signed is simple: anyone who wants to participate in a certain activity signs what is intended to be a legal document stating that (1) he or she assumes the risk of contracting COVID-19 through their participation and (2) agrees that the business, employer, school, college or even venue, is not liable for any COVID-19 related harms.
One document that releases and holds harmless entities from all COVID-19 related liability sounds great on paper. That said, while there are different types of waivers (hold harmless agreements, pre-injury waivers, assumption of risk waivers), the one thing that is certain is the uncertainty of the waiver’s enforceability. Different states take different approaches the enforceability question.
In Florida, for example, the law on liability waivers is that the waiver must be in clear, unequivocal language to be enforceable. UCF Athletics Ass’n v. Plancher, 121 So.3d 1097, 1101 (Fla. 5th DCA 2011). To be effective, the wording of such clauses must be so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away. Raveson v. Walt Disney World Co., 793 So.2d 1171, 1173 (Fla. 5th DCA 2001)Waivers are strictly construed against the party seeking to relieve itself from liability. Gillette v. All Pro Sports, LLC, 135 So.3d 369, 370 (Fla. 5th DCA 2014). Further, liability waivers in Florida are unenforceable to disclaim against intentional, criminal or reckless conduct. Fresnedo v. Porky’s Gym III, 271 So.3d 1185 (Fla. 3d DCA 2019).
Some attorneys might tell you that means in Florida, all you have to do is put the COVID-19 waiver in clear, unequivocal language and avoid reckless behavior. But the definition of what constitutes “reckless conduct” varies, and smart plaintiff’s lawyers are already filing complaints noting that engaging in certain activities in the midst of a global health pandemic is per-se reckless. That hypothetical and these early cases alone should raise red flags as to how thorny the law around liability waivers can be.
Other states have different rules.
Many states do not recognize parental waivers; in other words, waivers signed by parents for their children are not enforceable. This complicates the use of waivers in the school re-opening context.
Louisiana is one state that bars the use of waivers completely. Meanwhile, Georgia tends to follow Florida, but a fascinating and potentially COVID-19 related applicable exception emerges from a Supreme Court case that holds waivers can, at times, violate public policy, especially when “the consideration for the waiver contract is contrary to good morals and the law.” Carrion v. Smokey, Inc., 298 S.E. 2d 584, 585 (Ga. Ct. App. 1982) Tennessee had long favored expansive liability waivers, but a recent decision from their state Supreme Court changed that, noting that “bargaining power and leverage” will now be key considerations in determining what is enforceable. Copeland v. HealthSouth/Methodist Rehabilitation Hospital, LP, 565 S.W.3d 260 (Tenn. 2018). The Tennessee decision reflects a judicial trend in the waiver context, as courts increasingly look to bargaining power, a concept that is particularly interesting in the context of college sports and potential NCAA member institutional use of waivers.
At present, courts are only beginning to field legal challenges posed by COVID-19 liability waivers, even as state legislatures begin to act, further muddying the waters.
According to the American Tort Reform Association, 13 states and the District of Columbia have passed COVID-19 laws to limit the liability of health care providers and businesses. Governors of other states have issued executive orders limiting the liability of health care providers and some businesses. These new laws create constitutional questions, as well as enforceability ones.
All told, the debate over the use of liability waivers in the COVID-19 age is just beginning, but one thing seems certain: at a time of great uncertainty, the use or considered use of a liability waiver as a potential way to insulate from liability seems more widespread than ever.