Virginia entered Phase III of its reopening plan on July 1, 2020 following COVID-19 closures. Other states are in various phases of reopening, with some reversing their course of conduct due to upticks in active COVID-19 cases and hospitalizations. As new world order ensues, businesses are attempting to protect themselves in any way possible – including against claims by first and third parties.
The most basic attempt at protection is simple notice. Notice is an effective posting of rules or guidelines that premises occupants must follow to enter or utilize the space or services. It is not uncommon to see signs requiring masks to be worn, temperatures to be taken, designated hours of business, or limited access. Basic premises liability law recognizes that an invitee has the right to assume premises are reasonably safe for his visit. In the absence of knowledge or warning of danger, he is not required to be on the lookout for it. (See, e.g. Knight v. Moore, 179 Va. 139, 146, 18 S.E.2d 266, 270 (1942).) Posting information related to COVID-19, mask wearing, sanitation practices, and other related content gives the invitee the choice whether to enter the premises or not based on the resources provided – is the possibility of exposure to COVID-19 balanced with the need to enter given the posted practices? One might argue that the existence of the COVID-19 Pandemic creates an open and obvious hazard to anyone willing to traverse the streets; however, posting a notice moots the question.
A secondary attempt at protection is requesting individuals sign a liability waiver. Employees and customers alike are being asked to sign such waivers. According to Snopes.com, registration for a recent Trump campaign rally included the following language:
By clicking register below, you are acknowledging that an inherent risk of exposure to COVID-19 exists in any public place where people are present. By attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Donald J. Trump for President, Inc.; BOK Center; ASM Global; or any of their affiliates, directors, officers, employees, agents, contractors, or volunteers liable for any illness or injury.
Similar language was recently located in a form required to return a child to daycare:
Specifically, I understand that I, my child, or another relative or family member of mine may be exposed to or contract COVID-19 or another severe illness from the parents, other participating children, staff, or another source at the Child Development Center. In fact, young children may be even more likely to spread the disease between each other and other participating families as young children may carry the virus while appearing asymptomatic and may not have the ability or understanding to practice healthy hygiene practices expected of adults or recommended by the Center for Disease Control or other health authorities. Prior to my child’s participation or continued participation in the daycare, I acknowledge that I am aware of and I expressly accept and assume these risks, including any risks inherent in the activities involved and of which I may not be presently aware.
But is this language enforceable? In Virginia, liability waivers have expressly been deemed unenforceable. A release from liability for personal injury for future acts of negligence are prohibited by public policy. (Hiett v. Lake Barcroft Community Ass’n, 244 Va. 191, 418 S.E.2d 894 (1992).)
In other states, though, like California, such waivers are enforceable. In these states, a carefully worded waiver and assumption of risk clause may be helpful to prevent claims, or at least give a gung-ho claimant pause. In states like Virginia, where traditional waivers are not enforceable, but COVID-19 is novel, it may still be a best practice to engage in obtaining waivers in the event of a claim. In this situation, the waiver can at the minimum provided additional notice and evidence of attempting to protect the employee or customer, and, at a maximum, provide the ultimate protection of waived liability. The waiver may also buttress an assumption of risk defense. An assumption of risk defense is an affirmative defense that can be raised responsive to a negligence claim where there is evidence the claimant had knowledge of the risk and voluntarily accepted the risk anyway. The signing of a waiver, particularly in conjunction with posted notice, provides evidence of both.