Exculpatory clauses are in the news. In a widely reported development, to register online for the recent Donald J. Trump for President rally in Tulsa, Oklahoma, attendees had to agree that, “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.”
While this is a high-profile example of a legal disclaimer, exculpatory clauses with similar language have become an increasingly typical accommodation during the pandemic. Their proliferation may soon make COVID-19 disclaimers ubiquitous and largely overlooked, like so much other fine print that underscores our daily affairs. And yet, even on their face, COVID-19 disclaimers seem to represent a distinct variation on the genre. Certainly, this is not like agreeing to refrain from diving into a kiddie pool, or from pumping gas during a lightning storm. In most contexts observed to date, COVID-19 disclaimers represent agreements to accept a little-understood, potentially lethal threat, for the benefit of doing something completely “normal,” like listening to a speech, watching a movie or eating a burrito in public.
But do COVID-19-related exculpatory clauses actually stand apart? While these waivers are too new to say for certain, courts will ultimately decide the issue, as claims challenging these waivers are inevitable. A close examination, however, reveals several issues that suggest unique treatment.
Enforceability Issues with COVID-19 Liability Releases
Exculpatory devices for publicly attended events vary by jurisdiction and industry. Most states have specific statutory regulations for the use of exculpatory devices. Generally, event exculpatory devices appear on the back of the event ticket (or more commonly today as a “shrink-wrap” or “click-wrap” agreement on the event’s ticketing website). A well-drafted event exculpatory device will use plain English and avoid legalese.
Whether or not the event-goer actually reads the exculpatory language, these clauses can be effective and enforceable. However, being contracts of adhesion, courts closely scrutinize them. Is the clause conspicuous and clear? Is it ambiguous? These are key factors in determining enforceability. Additionally, most states only allow exculpatory devices for negligent behavior, while risks from wanton, willful, malicious or criminal acts cannot be released. Many states will not allow minors, or the parents of minors, to enter into exculpatory agreements, and liability for public events, especially those that cater to children or families, often cannot be limited.
The novelty of COVID-19, including its unclear means of transmission, almost ensures that the viability of an exculpatory device will be strained. Risk—that is to say, a measure of unpredictability—is the essence of exculpatory waivers. But with COVID-19, this measure of unpredictability is off the scale. Perhaps the closest analogous situations are pre-COVID-19 informed consent forms associated with blood work, invasive procedures or participation in research studies.
While the language of these familiar exculpatory devices will likely be carried forward to many COVID-19-centric forms, its legal effect might differ. The ease of COVID-19 transmission combined with its lethality make it a truly unique risk. Is the law willing to conscience serious illness or fatalities arising from a meet-the-author event at a bookstore that had a sneezing employee but also had exculpatory language on its advertisement?
Again, clarity and specificity are key. In addition, promoting common sense and situational awareness—like on a ski slope where conditions constantly change, and where one must keep an eye out for the actions of others—may improve the odds of exculpation. It may be best to blend candor and sincerity (e.g., “despite diligent hygiene measures and compliance with the law we cannot guarantee that infectious transmission will not occur”) with tried and true legal verbiage in an effort to craft an enforceable COVID-19 waiver.
There is no one-size-fits-all template that can be used across all jurisdictions and by all hosts of public events. First, to increase the likelihood of enforceability, any exculpatory agreement should be tailored to the reasonable expected risks of the event. For example, it has long been understood that attendees of a baseball game risk getting hit by a baseball. Indeed, that sort of assumption of risk is squarely in the nature of the event and a provision protecting the host of the baseball game is likely enforceable. Second, because each state has its own approach to liability waivers, public event hosts are well advised to consider local laws.
For large entities and promoters that host events in multiple states, tailoring the language to each state would be advisable even for events that are similar in nature.
Even assuming the event host follows all federal, state and local laws and guidance, however, a plaintiff could argue that hosting the event during the pandemic is, in itself, grossly negligent or reckless (a risk from which there is likely no reprieve) despite any precautions taken. Compare a baseball game to a bluegrass festival. While baseball game ticketholders assume the risk of being hit by a baseball, the stadium still hangs a large net to capture balls hit out of play. The effectiveness of the net is obvious and easy to evaluate. At a bluegrass festival, though, the effectiveness of the venue’s ability to compel safe behaviors by attendees may be far less certain despite the expected COVID-19 safety measures (e.g., hand spray stations, facemasks, and required social distancing). Much like baseball nets with gaping holes, might the bluegrass venue be accused of gross negligence or recklessness once the music starts?
As employees return to the workplace, employers will also want to try to mitigate the risk of an employee contracting COVID-19 and filing suit. Employees returning to work may first be required to sign an “acknowledgement of risk” form describing the various hygiene protocols in use together with the employee’s acknowledgement that they may nevertheless contract COVID-19. Whether being fired for refusing to sign an “acknowledgement of risk” form would preclude the collection of unemployment benefits is a topic beyond the scope of this article. However, generally speaking, the use of such acknowledgement forms is not prohibited, and, provided that the workplace complies with applicable health and safety laws, may help to mitigate employers’ risk.
For more information and analysis of COVID-19 liability waivers, read Goldberg Segalla’s white paper: Will COVID-19 Liability Releases Hold Up? Examining the Enforceability of Exculpatory Clauses in the Context of an Evolving Pandemic