LIABILITY WAIVERS AND COVID-19

        With colleges opening up campus for athletes, pro teams starting group practices and businesses opening up you are going to see an inevitable rise in COVID-19 with unavoidable close contact. You will start to see many sports programs requiring athletes to sign a waiver of liability for all COVID-19 related “injuries” and illnesses. This begs the question: are COVID-19 liability waivers valid and enforceable in NYS? Waivers vary from state to state. Three states—Louisiana, Montana and Virginia—disallow liability waivers entirely. Other states’ laws vary between lenient and strict requirements for enforceability, and most jurisdictions have adopted specific tests for considering whether a waiver is enforceable. In NY a liability waiver is enforceable if: (i) it does not violate public interest, (ii) the intention of the parties is expressed in unmistakable language, and (iii) the provisions are clear and coherent.

     I drafted a liability waiver for a personal trainer in NY a few years ago. New York State does not enforce waivers in cases where there has been gross negligence or reckless and inherently dangerous acts and conditions; it only protects against common/general negligence. The waiver also has to be clear and unambiguous. An example of gross negligence pertaining to COVID-19 would be if a sports team or business fails to follow state and local guidelines regarding COVID precautions. For instance if a sports team fails to take any measures to sanitize equipment or common spaces such as locker rooms or a business fails to space individual eating areas 6 feet apart and fails to require their employees to wear masks. These are examples of gross negligence. We may be seeing litigation arise in cases where an athlete or patron was required to sign a waiver essentially waiving any future rights to litigation claims. However, if they contracted COVID-19 due to the gross negligence of the team or business the waiver will likely be unenforceable in Court. While there is the assumption of risk with all of this, individuals signing waivers are not assuming risk for gross negligence. Just common negligence. On the other hand it will be very difficult in any case to prove how, when and where someone contracted COVID-19.  Bottom line is if you are going to require athletes or patrons or fans to sign a waiver, make sure it is clear, unambiguous and understandable to a lay person so that they know exactly what they are waiving their rights to. Consult your lawyer. Keep in mind, before requiring athletes, fans or patrons to sign a waiver, make sure you did your due diligence by following the cleaning and precaution guidelines and requirements for your local and state government.