• 2020-07-covid-liability-story_900
    By On 17 July 2020 In safety, State

    Are Liability Waivers Effective in the Age of Covid-19?

    By Jeff Aran, CSA Legal Counsel • July 17, 2020

    One of our jobs here at CSA Legal HQ is to help simplify the quagmire of rules and regulations affecting the sign industry. This topic – liability waivers – can be confusing, especially in the age of Covid, and doubly so in California. The question is: Can you use a waiver to avoid liability for potential exposure to the coronavirus (or any disease, for that matter)?

    First, what is a liability waiver?

    Here’s the Bottom Line: Simply, a liability waiver is a written document signed by a participant in an activity releasing the business or property owner from liability. For example, you go to the gym or pool, ride a horse, and sign a release giving up any claim you might have for injury or illness you suffer.

    That’s pretty straightforward and not uncommon, except in the Covid age, where just breathing can result in exposure. As a result, waivers are popping up in unexpected venues – from hair salons to restaurants and dentists and golf courses. Or, you attend a concert, convention or a political rally, or simply go to the grocery store — just about anywhere you could contract Covid (or any other disease). And, how would a waiver apply in a construction context?

    What are the elements of a waiver?

    Essentially, a waiver is a contract. To be enforceable it must be narrowly tailored to your business, clear and unambiguous, and easily understood by the person signing it. The person signing the release must knowingly understand what they are waiving. For example, the waiver utilized at Donald Trump’s recent election rallies required attendees to acknowledge that the “inherent risk of exposure to Covid-19 exists in any public place where people are present” and to release organizers “from any and all liability under any theory, whether in negligence or otherwise, for any illness or injury.” In other words, you sign your life away.

    Is the liability waiver valid?

    Simple answer: It depends. A waiver might dissuade someone from suing, but what if you went to one of those rallies and came home only to infect your neighbor or grandma? The person who didn’t sign the release could sue. But even so, a release may nonetheless be of no force and effect if it’s contrary to public policy, the business was grossly negligent (e.g., failed to take reasonable precautions), or there’s law or other remedy prohibiting them.

    On July 14, a California federal judge tossed two suits alleging Princess Cruise Lines put passengers in danger of contracting COVID-19, finding the passengers can’t recover damages for negligent infliction of emotional distress because they were afraid of contracting the virus. “Given the prevalence of COVID-19 in today’s world, plaintiffs’ proposed rule would lead to a flood of trivial suits, and open the door to unlimited and unpredictable liability,” the judge held. The plaintiffs were among approximately 100 passengers who filed nearly identical suits against Princess, each seeking $1 million in compensatory damages for emotional distress after they boarded the Grand Princess in San Francisco on Feb. 21, according to Princess.

    Additionally, worker’s comp provides the exclusive remedy for work-related injuries and exposures. A recent suit brought by exposed meat packers in Missouri who alleged the plant did not enforce social distancing, face coverings and hand washing was dismissed as best left to OSHA purview. By Executive Order, California has already declared Covid exposures to be work-related.

    In other contexts, immunities might exist. Congress is currently considering legislation to create a safe harbor for certain businesses and nonprofit organizations, colleges and universities.

    In California, pending AB 1035 (amended June 25): “. . . would exempt a small business with 25 or fewer employees from liability for an injury or illness to a person due to coronavirus (COVID-19) based on a claim that the person contracted COVID-19 while at that small business, or due to the actions of that small business. The bill would require the small business, for this exemption to apply, to have implemented and abided by all applicable state and local health laws, regulations, and protocols. The bill would not permit this exemption to apply if the injury or illness resulted from a grossly negligent act or omission, willful or wanton misconduct, or unlawful discrimination by the business or an employee of the business. The bill would apply these provisions only during the timeframe in which the state of emergency related to the COVID-19 pandemic is effective. The bill would repeal these provisions on January 1, 2023.”

    With respect to business interruption insurance, Assembly Bill 1552 (amended June 29) would create specified rebuttable presumptions affecting the burden of proof when the insured alleges that the business interruption was due to the COVID-19 pandemic and occurred during the period of the state of emergency declared by the Governor; the bill would create a “rebuttable presumption” that COVID-19 was present on and caused physical damage to property which was the direct cause of business interruption. A similar presumption would apply to orders of civil authority coverage and to ingress/egress coverage. (The bill would also apply retroactively to March 4, and further prohibits COVID-19 from being construed as a pollutant or contaminant for purposes of any insurance policy exclusion unless the exclusion specifically referred to viruses.)

    Bottom Line:

    There is no clear answer. A liability waiver might help, but, regardless, contractors need to take all reasonable and necessary precautions and follow Cal/OSHA workplace and job site guidelines as best as possible. Be certain to have a hazard plan in place, educate employees, and undertake reasonable and feasible action steps to minimize exposure for employees and customers.

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