By Samir Dahman & Mark Rasch
Since Ohio lifted its stay at home order in late May, some businesses have requested that employees, patrons and others entering their physical space agree to a COVID-19 waiver, in essence releasing the business from liability if that person catches COVID-19 on the business premises. These waivers have been in the form of postings at the entrance (“by entering this facility you agree…”), electronically signed waivers before entering (“by clicking here you agree…”) and other forms. Meaningful assent is a key component to an enforceable waiver. The question is: are these releases valid, and under what circumstances?
Releases Enforceable for Negligence if Clear Language
In Ohio, contract clauses (like waivers and releases), which relieve a party from its own negligence, are generally upheld. In fact, a release is ordinarily an absolute bar to a later action on any claim encompassed within the release. These releases are usually in the context of recreational activities like going to a gym or pool. Often, releases constitute an express assumption of risk – like the risk of getting hit by a ball at an Indians or Reds game. Critically, to be enforceable, the release must be expressed in terms that are clear and unequivocal. This was the case in Jacob v. Grant Life Choices Fitness Center, where a gym member signed a release and waiver in favor of the gym, and so the member’s negligence claim against the gym was barred. In other words, the gym’s own negligence was excused because the member signed a clear and unambiguous release and waiver.
Releases Not Enforceable for Intentional or Malicious Conduct, or Conduct Not Contemplated when Release Signed.
Conversely, a party cannot be released from liability for its own intentional or malicious conduct. Nor is a release enforceable where it purports to release claims that the parties did not contemplate when the release was agreed to. And even if you obtain an otherwise valid waiver, courts may not enforce it if it finds that the waiver does not comport with public policy, if the “party” to the waiver lacked the ability to enter into the contract (a minor, for example), or if the waiver is not supported by adequate consideration.
So to be effective, a release must:
- be clearly understandable,
- contemplate what kind of claims it is releasing (catching COVID-19 here), and
- not seek to avoid liability for intentional conduct.
This begs the question of what would constitute something more than negligence in the context of COVID-19? One could argue that following the Centers for Disease Control and Prevention and Ohio Department of Health guidelines to prevent the spread of COVID-19 is what a reasonably prudent business would do under today’s circumstances, and therefore, it was not deliberately trying to spread the illness. If a court determines that deviance from these guidelines is grossly negligent, intentional or malicious, a COVID-19 waiver may not protect the business from being liable for an employee or customer’s resulting injury.
Additionally, anyone claiming that a store or office is liable for a COVID-19 infection would have to show that the locations’ actions is what caused the specific infection and resulting harm – something that may be difficult to do as society opens up more generally.
Cost Benefit of Waivers
The most important question for any facility is whether the chilling effect of a waiver outweighs the benefit? Most people are not offended by agreeing to a waiver when doing recreational activities, like going to a baseball game or the gym. But how would people feel about signing a waiver to go inside Kroger to buy groceries? To date, while the local Kroger wipes down carts, it does not request waivers, nor is there a prominent warning at the entrance about the spread of COVID-19, nor are there even social distancing markings on the floor. Ostensibly, Kroger has determined that the cost of seeking waivers and other measures outweighs the benefit.
Mandatory waivers, whether online or at-store may deter people from shopping, cause them to shop elsewhere or just give a “bad taste” about the consumer experience. Indeed, in some cases, the waiver may draw attention to the possibility of harm. In light of the fact that there are currently no consumer negligence COVID-19 infection lawsuits reported in Ohio, you may decide that the waiver is not worth the risk. That calculus may be different with respect to employees than it is with respect to customers or other business invitees.
Ultimately though, waivers are helpful in deterring lawsuits. If you make the decision that you want to obtain COVID-19 waivers, you should work with your attorneys to craft clear waivers so that their employees and patrons understand that they are releasing the business from negligence regarding COVID-19.
Please reach out to Samir Dahman at sbd@kjk.com or 614.427.5750 or Mark Rasch at mdr@kjk.com or 301.547.6925 with any questions about COVID-19 waivers and releases.