Summertime typically sees an increase in the use of recreational waivers designed to absolve business owners of liability against a lawsuit when seasonal thrill seekers take on activities such as zip-lining, rock climbing, jet skiing and parasailing. There is a new waiver in town, though, according to A. Vince Colella, a founding partner of Moss & Colella, P.C., a Southfield, Michigan-based law firm specializing in personal injury and civil rights, and it goes far beyond fun.
“The COVID-19 waiver form is emerging in all types of commercial areas as busines owners seek to shield their companies from liability,” Colella said. “It’s still too early to tell if the trend will take root and signing a COVID-19 waiver will become a new fact of life, but it’s here — and business owners are wise to take advantage of the protection.”
In his experience with gross negligence cases and recreational waivers, Colella has often found it is not just the risk of the activity itself that endangers participants, but operator error as well. He sees a corollary here with COVID-19 exposure. While consumers know that a pandemic situation still exists, they also expect a certain level of safety from the public places that are open for business.
“Because of public education campaigns, media reports, and personal experience, consumers are well aware of the risk associated with going out in public and entering a commercial business to purchase a product, meal or service while COVID-19 is still a public health issue,” Colella said. “At the same time, they know that organizations that serve the public are required by state law to implement and adhere to new safety protocols before doing so and will expect compliance. Even if they require customers to sign a waiver against COVID-19 liability, the proprietor still needs to adhere to the strict safety standards — and customers should use good judgement in assessing whether that’s the case.”
With risky recreational activities, most participants sign the recreational waiver without question because they realize that the activity is risky; yet they also assume that every precaution within reason has been taken to keep participants safe, Colella said. But will they sign a COVID-19 waiver?
“I suspect the waivers that are used will be part of the initial safeguarding as people navigate the new normal of everyday living; many may sign them initially because they want to resume some semblance of normalcy for themselves and their family,” Colella said. “What remains to be seen – and it will take a long time – is how far businesses will have to stray from the guidelines before a court would characterize the conduct as ‘reckless disregard for safety’- triggering liability despite having a signed waiver. With standard liability cases, it’s imperative to show a direct cause and result; that’s much more difficult to do with COVID-19 contraction.”
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