Smile and Waive: The Enforceability of Waivers of Liability During the COVID-19 Pandemic

Virginia Stewart

I. Introduction

On March 1, 2020, President Trump proclaimed that the outbreak of coronavirus, or COVID-19, in the United States constituted a national emergency.[1] In response, several states took legislative action in order to protect businesses, among other things, against tort claims related to  COVID-19.[2] The Louisiana Legislature followed other states by enacting Louisiana Revised Statutes § 9:2800.25, which grants to certain types of entities protection from liability for claims related to COVID-19.[3] Although effective June 13, 2020, the law is retroactive to March 11, 2020, when Louisiana declared its state of emergency related to COVID-19.[4] In relevant part, the statute provides:

No natural or juridical person, state or local government, or political subdivision thereof shall be liable for any civil damages for injury or death resulting from or related to actual or alleged exposure to COVID-19 in the course of or through the performance or provision of the person’s, government’s, or political subdivision’s business operations unless the person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state, or local agency which governs the business operations and the injury or death was caused by the person’s, government’s, or political subdivision’s gross negligence or wanton or reckless misconduct. If two or more sources of procedures are applicable to the business operations at the time of the actual or alleged exposure, the person, government, or political subdivision shall substantially comply with any one applicable set of procedures.[5]

Notably, the state immunizes four groups addressed in paragraphs A through D.[6] Paragraph A of the statute expands the immunity to those conducting business in Louisiana, paragraph B grants immunity to event planners, paragraph C addresses employer immunization, and paragraph D covers workers’ compensation under the statute.[7] Based on the liberal wording of Louisiana Revised Statutes § 9:2800.25, it appears the Louisiana Legislature intended to create an incentive for businesses to reopen in the midst of COVID-19 by broadly extending immunity against COVID-19 transmission claims so long as the business complies with the statute.[8] This article’s analysis of the statute focuses specifically on paragraph A and the liability coverage extended to businesses in their course and conduct during this “new normal.”

While Louisiana Revised Statutes § 9:2800.25 (hereinafter referred to as the “immunity statute”) appears to give business owners security from the initial fear of reopening their doors and the resultant potential for liability exposure, since lawsuits claiming that businesses were negligent in their duties to protect the public from the virus will likely be highly litigated. Courts in different jurisdictions have already begun to address COVID-19 disputes, such as business interruptions and the availability of insurance payouts for COVID-19 claims under existing policies.[9] Despite the passage of state legislation, businesses have also adopted protective procedures and protocols, such as requiring customers to sign liability waivers, in order to limit liability exposure.[10]

The issue of whether a waiver of liability is enforceable to bar subsequent negligence claims varies significantly by state.[11] Liability waivers are generally unenforceable in Louisiana, Montana, and Virginia.[12] Specifically, Louisiana nullifies contracts that attempt to limit future liability for physical injuries under Louisiana Civil Code article 2004.[13] Louisiana Civil Code article 2004 provides, “Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.”[14] Generally, it is undecided whether someone who allegedly contracted or was exposed to COVID-19 from an establishment has suffered a physical injury within the meaning of article 2004.[15]

The interaction between the newly enacted immunity statute and Louisiana Civil Code article 2004 remains unclear. A business may want to use a liability waiver given the presence of the immunity statute because a person may allege a business was not doing enough to comply with the relevant guidelines, and the business may wish to protect itself to cover gross or reckless conduct.[16]

Further, it seems unlikely that a Louisiana court, considering the legislature’s liberal grant of immunization for businesses under the immunity statute, would enforce a liability waiver in favor of a business in a COVID-19 suit. The Louisiana Legislature has provided a means to limit liability for businesses during COVID-19.[17] Granting protection from liability through a COVID-19 waiver, beyond what the immunity statute already liberally provides, could be considered excessive.[18] Conversely, because the Louisiana Legislature was willing to make broad limitations of liability available, public policy may lead a Louisiana court to favor specific waivers when appropriate, specifically for businesses that comply with relevant guidelines.[19]

The grant of immunization under § 9:2800.25 is broad, whereas the waiver provision under Louisiana Civil Code article 2004 has been interpreted narrowly.[20] While a Louisiana court may not enforce a COVID-19 waiver, businesses already have the statutory grant of immunity from this new law.[21] Therefore, businesses should not rely on liability waivers due to the uncertainty of the interplay between the immunity statute and Louisiana Civil Code article 2004 but should instead follow the relevant CDC guidelines that afford businesses protection under the new law.

II. COVID-19 and Waivers of Liability

In the wake of COVID-19 and the implementation of guidelines on public health and social distancing, businesses cautiously reopened while complying with local, state, and federal regulations.[22] As people slowly begin to reemerge in society under the “new normal” standard, businesses are looking at new tactics and protocols to implement in order to protect themselves from potential liability.[23] In addition to taking preventative steps such as requiring customers to take a wellness survey before entering an establishment, taking a person’s temperature at the door, encouraging use of hand sanitizer, mandating face coverings upon entry, and other measures, some businesses have also required customers to sign waivers of liability for COVID-19 exposure.[24] Businesses can easily access sample COVID-19 waivers online and require clients to sign off on liability before entering an establishment.[25] As noted earlier, these waivers can vary in the wording and language used, and the enforceability of these waivers varies significantly by state.[26]

For example, in May 2020 the Mississippi Supreme Court adopted a plan put forth by the Board of Bar Admissions to proceed with an in-person bar examination in July that included a requirement that test-takers sign liability waivers, among other public health measures.[27] Philip McIntosh, a professor at Mississippi College School of Law, stated, “It would be hard to prove negligence on the state, if it’s operating under appropriate guidelines with separation, wearing masks and keeping people as safe as possible.” As a general rule, the Mississippi Supreme Court has not been in favor of waivers.[28] McIntosh noted that Mississippi applicants may be less likely to challenge the waiver than those in other states.[29] If a law student sat for the Mississippi bar exam and subsequently contracted COVID-19, the validity of the waiver could be called into question. If this issue ever made its way to the Mississippi Supreme Court, it is likely the court would strike down its own waiver given its general prohibition toward such liability waivers.[30]

Louisiana presents a unique question on the enforceability of COVID-19 liability waivers for personal injury due to its statutory prohibition for such waivers in Louisiana Civil Code article 2004.[31] Although the newly enacted immunity statute reflects the Louisiana Legislature’s intent to encourage businesses to reopen by providing them with immunity from liability due to COVID-19, the enforceability of a COVID-19 waiver under Louisiana Civil Code article 2004 remains unclear.

III. The Interplay between Louisiana Revised Statutes § 9:2800.25 and Louisiana Civil Code Article 2004

As previously noted, the Louisiana Legislature enacted reforms during the COVID-19 pandemic in order to address limits on liability due to COVID-19 exposure.[32] Paragraph A of § 9:2800.25 limits the potential liability for a natural or juridical person, state or local government, or political subdivision for injury or death related to COVID-19 exposure or contraction.[33] The law provides certain exceptions to the liability limitations and protections that it creates.[34] For example, the immunity statute provides protection from liability “unless the person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state, or local agency.”[35] Therefore, if a business fails to comply with the relevant COVID-19 procedures, the statute will not provide immunity to the business or entity.[36] Further, the statute does not provide immunity for an entity’s “gross negligence or wanton or reckless misconduct.”[37] Thus, gross fault invalidates the immunity provided by the statute.[38] Waivers will not provide protection to businesses because waivers are not enforceable to cover reckless conduct or gross fault.[39] Arguably, if a business required a person to sign a COVID-19 waiver, and that business acted grossly negligent or recklessly, then the statute and the waiver will not provide protection to the business.[40]

If a business did comply with the relevant COVID-19 procedures and an individual filed suit for contracting COVID-19, then § 9:2800.25 would arguably apply, and the business should be protected.[41] Assuming the statutory immunity does not apply because of a business’s failure to comply with the guidelines, then the question becomes whether or not a business could rely on a limitation of liability waiver is raised.

Importantly, it is unclear whether the actual or alleged exposure to COVID-19 is a physical injury within the meaning of Louisiana Civil Code article 2004.[42] Louisiana Revised Statutes § 9:2800.25 provides liability protection for “any civil damages for injury or death resulting from or related to actual or alleged exposure to COVID-19.”[43] This new law prioritizes economics by encouraging business operations, except in the case of businesses’ negligent or wrongful conduct related to a physical injury.[44] In contrast, Louisiana Civil Code article 2004 nullifies any clause that in advance excludes or limits the liability of one party for causing “physical injury” to the other party.[45]

In the ongoing outbreak of COVID-19, courts may face the question of whether actual or alleged exposure to or contraction of COVID-19 is a “physical injury” within the meaning of Louisiana Civil Code article 2004.[46] While COVID-19 can produce a variety of symptoms, and even death, a Louisiana court may not deem the alleged exposure or contraction of COVID-19 a “physical injury” that fits within the legislative intent behind Louisiana Civil Code article 2004.[47] While actual contraction of COVID-19 may be considered a physical injury when it results in severe symptoms and even death, asymptomatic carriers or individuals with very mild symptoms may not suffer a physical injury as referenced in the immunity statute.[48] Similarly, alleged exposure to COVID-19 is much less injurious.[49] While the immunity statute references injury from or related to COVID-19, the meaning of physical injury may be different than Louisiana Civil Code article 2004.[50] The immunity statute seems to presuppose COVID-19 exposure as injurious, but the standard of physical injury under Louisiana Civil Code article 2004 is likely different.[51]

If COVID-19 exposure or contraction qualifies as a physical injury, then the waivers will likely be deemed null because of the statutory prohibition against such waivers and in light of the legislature’s generous protection afforded under the immunization statute.[52] Because the Louisiana Legislature gave liberal protections to businesses under the immunity statute if they complied with the relevant guidelines and did not act recklessly or negligently, then a court will likely not expand other areas of law—here Louisiana Civil Code article 2004—that are traditionally narrowly interpreted.[53]

As a result, businesses should not rely on COVID-19 waivers for protection in Louisiana because of the general prohibition against such waivers under Louisiana Civil Code article 2004.[54] Instead, businesses should find comfort in and rely on the provisions of § 9:2800.25.[55] However, businesses will not be provided the protection of the statute if they do not follow the guidelines set forth in the newly enacted law.[56]

IV. Conclusion

In conclusion, the Louisiana Legislature provides immunity for businesses against liability claims due to COVID-19 exposure through § 9:2800.25.[57] However, even if a company or business failed to comply with the COVID-19 regulations or acted recklessly, that organization will not likely be afforded the protection of a liability waiver because of its nullity with respect to physical injuries under Louisiana Civil Code article 2004.[58] Therefore, businesses in Louisiana should be wary of reliance on a COVID-19 liability waiver and should attempt to comply with Louisiana Revised Statutes § 9:2800.25.

 

 

[1] Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (Covid-19) Outbreak, The White House (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ [https://perma.cc/Y66F-4NHU].

[2] Christina Hull Eikhoff, Jane B. Lucas & Melissa Quintana, Litigation/Legislative & Public Policy Advisory: What is Government Doing to Protect Businesses Against COVID-19-Related Tort Liability? A National Overview, Alston & Bird (Sept. 17, 2020), https://www.alston.com/en/insights/publications/2020/09/what-is-government-doing-to-protect-businesses/ [https://perma.cc/DX3H-YAMN].

[3] La. Rev. Stat. § 9:2800.25 (2020).

[4] Id.

[5] Id. (emphasis added). The statute goes on to state;

B. No natural or juridical person, state or local government, or political subdivision thereof, nor specifically a business event strategist, association meeting planner, corporate meeting planner, independent trade show organizer or owner, or any other entity hosting, promoting, producing or otherwise organizing an event of any kind, shall be held liable for any civil damages for injury or death resulting from or related to actual or alleged exposure to COVID-19 in the course of or through the performance of hosting, promoting, producing or otherwise organizing, planning or owning a tradeshow, convention, meeting, association produced event, corporate event, sporting event, or exhibition of any kind, unless such damages were caused by the gross negligence or willful or wanton misconduct.

C. An employee whose contraction of COVID-19 is determined to be compensable under the Louisiana Workers’ Compensation Law shall have no remedy based in tort for such exposure against his employer, joint employer, borrowed employer, statutory employer, any other person or entity listed in R.S. 23:1032(A)(1)(b), and any other person or entity potentially liable pursuant to the Louisiana Workers’ Compensation Law unless the exposure was intentional as provided by R.S. 23:1032(B).

D. Notwithstanding the rights of employees as provided by R.S. 23:1032(B), employees who contract COVID-19 and are not covered by the Louisiana Workers’ Compensation Law shall have no remedy in tort for such exposure against their employer, joint employer, borrowed employer, statutory employer, any other person or entity listed in R.S. 23:1032(A)(1)(b), and any other person or entity potentially liable pursuant to the Louisiana Workers’ Compensation Law unless the exposure was caused by intentional act.

Id.

[6] Id.

[7] Id.

[8] Id.

[9] For example, a District of Columbia court recently ruled that a property insurance policy does not offer business interruption insurance coverage for losses related to the COVID-19 pandemic. Rose’s 1, LLC v. Erie Ins. Exch., No. 2020 CA 002424 B, 2020 WL 4589206 (D.C. Super. Ct. Aug. 6, 2020). In Rose’s 1, LLC v. Erie Ins. Exch., the court found that the insureds could not show a “direct physical loss” under their insurance contracts from the closure of their businesses due to the COVID-19 pandemic. Id.

[10] See generally COVID-19 liability waivers and minors – reopening considerations, JDSupra, https://www.jdsupra.com/legalnews/covid-19-liability-waivers-and-minors-86945/ (last visited Sept. 27, 2020) [https://perma.cc/3YL4-M6GJ].

[11] How Courts May Interpret COVID-19 Waivers of Liability, Goldfinch Winslow, https://goldfinchwinslow.com/how-courts-may-interpret-covid-19-waivers-of-liability/ (last visited Sept. 20, 2020) [https://perma.cc/YT3A-YS5A].

[12] COVID-19 liability waivers and minors – reopening considerations, supra note 10.

[13] La. Civ. Code art. 2004 (2020).

[14] Id.

[15] Id.

[16] Compare La. Rev. Stat. § 9:2800.25 (2020), with La. Civ. Code art. 2004.

[17] See generally La. Rev. Stat. § 9:2800.25.

[18] Id.

[19] Id.

[20] Compare La. Rev. Stat. § 9:2800.25, with La. Civ. Code art. 2004.

[21] La. Rev. Stat. § 9:2800.25.

[22] Coronavirus reopening: Map of COVID-19 case trends, reopening status and mobility, USAToday (Oct. 15, 2020), https://www.usatoday.com/storytelling/coronavirus-reopening-america-map/ [https://perma.cc/7XV3-MWBP].

[23] Eikhoff, Lucas & Quintana, supra note 2.

[24] Guidance on Preparing Workplaces for COVID-19, OSHA, https://www.osha.gov/Publications/OSHA3990.pdf (last visited Oct. 15, 2020) [https://perma.cc/6UB6-V3GD].

[25] For example, in a sample release and waiver of liability agreement, businesses require clients to verify, “I understand that [the company] cannot be liable for any exposure to the COVID-19 virus caused by misinformation on this form or the health history provided by each client. By signing below, I agree to each statement above and release [the company] from all liability for the unintentional exposure or harm due to COVID-19.” Covid-19 Waivers, Waiverfile, https://www.waiverfile.com/Covid-Waivers/ (last visited Sept. 28, 2020) [https://perma.cc/GQD8-FRTY].

[26] See generally COVID-19 liability waivers and minors – reopening considerations, supra note 10.

[27] Alex Andonovska, More Bar Exam Delays Announced – Updated 5/7/20, JDJournal (May 7, 2020), https://www.jdjournal.com/2020/05/07/more-bar-exam-delays-announced-law-students-push-for-emergency-diploma-privilege/ [https://perma.cc/8E2S-73BP].

[28] Id.

[29] Id.

[30] Id.

[31] See generally La. Civ. Code art. 2004 (2020).

[32] Mark N. Mallery & Javier Jalice, Louisiana Enacts Reforms During the COVID-19 Pandemic: Limits on Liability, Damages, and Changes to Evidentiary Rules, Ogletree (July 30, 2020), https://ogletree.com/insights/louisiana-enacts-reforms-during-the-covid-19-pandemic-limits-on-liability-damages-and-changes-to-evidentiary-rules/ [https://perma.cc/VX4M-J26F].

[33] La. Rev. Stat. § 9:2800.25 (2020).

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] See generally La. Civ. Code art. 2004 (2020).

[40] La. Rev. Stat. § 9:2800.25.

[41] Id.

[42] See generally La. Civ. Code art. 2004.

[43] See generally La. Rev. Stat. § 9:2800.25.

[44] Id.

[45] La. Civ. Code art. 2004.

[46] Id.

[47] Id.

[48] See generally, La. Rev. Stat. § 9:2800.25.

[49] Id.

[50] Compare La. Rev. Stat. § 9:2800.25, with La. Civ. Code art. 2004.

[51] Compare La. Rev. Stat. § 9:2800.25, with La. Civ. Code art. 2004.

[52] Compare La. Rev. Stat. § 9:2800.25, with La. Civ. Code art. 2004.

[53] La. Civ. Code art. 2004.

[54] Id.

[55] La. Rev. Stat. § 9:2800.25.

[56] Id.

[57] Id.

[58] La. Civ. Code art. 2004.

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