Liability Waivers Offer Protection as Businesses Reopen
Few drawbacks to having customers sign a form, but not all agreements are enforceable

by Jessica Folker

Since April, there has been speculation about whether the next round of coronavirus relief will include liability protections for businesses, but Congress is still weeks away from passing another stimulus package. In the meantime, companies are taking it upon themselves to protect against personal injury lawsuits by making patrons and customers sign liability waivers.

It’s not just small businesses jumping on the bandwagon. The NFL is reportedly considering asking fans to sign a waiver to attend games this season, and the Trump campaign has asked supporters to agree to assume all risks related to COVID-19 exposure when signing up to attend rallies. But are these agreements always a good idea, and will they hold up in court?

FEW DOWNSIDES

Although liability waivers and other exculpatory agreements may add some protections, they aren’t a substitute for following COVID-19 health and safety guidance from public health authorities.

“My advice to in-house counsel in considering implementing a liability waiver as part of their other protocols to protect against these sorts of lawsuits would be to see it as just another level of protection, but certainly not a silver bullet,” said Moye White partner Luke Ritchie.

Liability waivers add to an existing “arsenal of protections,” he said, including signs telling customers to wear masks, warnings about COVID-19, temperature checks and other safety and sanitation protocols.

One drawback of requiring waivers is the possibility of scaring off potential patrons who don’t want to be reminded of the risk of coronavirus while out on the town. Customers might assume a business that requires a waiver poses a higher risk of infection than one that doesn’t.

But while companies will have to weigh the effect a liability waiver could have on sales, from a legal standpoint, it probably can’t hurt to have one. “Purely from the litigator’s perspective… it’s better to have that additional protection in place,” Ritchie said.

Holland & Hart partner Lee Gray agreed there aren’t any real legal downsides to requiring liability waivers. “There’s a possibility that it won’t do any good,” Gray said. “But it wouldn’t harm you. Just by virtue of having it, you’re not going to be found more likely to have been negligent because you ask people to waive liability.”

This article appeared in the July 13 issue of Law Week Colorado. To read the complete article and others from that issue, order a copy online.