COVID-19 Waivers and the Tort-Contract Intersection
As businesses start to open up, they will be greeting their customers with smiles beneath their masks and, in some cases, COVID-19 waivers. The Walt Disney World Resort, for example, states on their website that visitors “voluntarily assume all risks related to exposure to COVID-19.” I don’t think a waiver on its website would be effective since most people won’t visit their website (or scroll down to read the waiver). A signed waiver might be more effective from a contractual standpoint, but equally undesirable from a social standpoint. President Trump, for example, is requiring COVID-19 waivers for those who plan to attend his rally. The waiver states:
“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.”
In the two examples above, I’m not convinced the waivers would be effective given the lack of assent. In the Disneyland case, visitors are not required to view the website and the statement would not constitute reasonable notice. I doubt any court would find the notice to be an effective waiver. The Trump rally waiver is a closer call. That waiver requires a manifestation (a click on a “Register” icon) but it’s not clear whether that would be effective to constitute assent to the waiver terms. The button states “Register” and not “I agree” ; however, given its proximity to the language indicating the waiver language, at least some courts would find constructive notice. The language of the waiver itself is not great and seems too general. Yet, given how much media attention the waiver has received, it might be difficult for an attendee to claim they did not have actual notice. The waiver, however, would only apply to those who registered for the event. Even if the requirements of contract formation are met with respect to the registrant, they wouldn’t bind anyone who did not register. I’m not sure how they plan to exclude those who did not register from the rally – are they going to take tickets and physically bar those who don’t have one?
In any event, even if a COVID-19 waiver is deemed validly formed doesn’t mean that it will be enforceable in all cases and against all potential plaintiffs. It would not be effective, for example, to shield a business from gross negligence or recklessness. It may also not be effective where the public interest is involved if the business/rally organizer is in the best position to protect against the harm. It also wouldn’t be effective against anyone who didn’t attend the rally who got sick from someone who did attend, although causation will be difficult to prove (as it likely will be in most tort cases involving liability for spreading the virus).
Given the social interests involved, a waiver shouldn’t free anyone from the duty to make sure that the premises are safe whether those premises are an amusement park, a clothing store, or a field where a rally is behind held. There should at least be enough space for people to spread out, although I’m not sure at a rally, that they will. I suspect that at a Trump rally, a good number of people won’t be inclined to wear masks and the odds of contaminated droplets and aerosols floating around is fairly high. Holding a large rally without enforcing minimum requirements (mask, social distancing) seems at least irresponsible and probably even reckless to me and a signed waiver shouldn’t let anyone off the hook, especially those who are supposed to be setting an example for the rest of the country.