Waiving your legal rights during a pandemic not always clear-cut

We’ve all done it. Clicked I Agree without reading what we’re agreeing to. Signed a form but ignored the wall of text we were meant to read. But in the middle of a pandemic, does that routine agreement become a riskier act?

That question leaped into the public eye when President Donald Trump required those who wanted to attend his recent rally in Tulsa to forfeit their legal rights if they caught the virus at the event.

With the sports world talking about returning in the fall, your ticket purchase may come with some strings attached. But the issue is not limited to mass gatherings. Here’s what you need to know about liability and what your rights may be.

Liability waivers are a common tool used to protect businesses from lawsuits, said Timothy Lytton, a law professor at Georgia State University. For example, when buying a ticket to a sporting event or signing up for a local health club, you probably already sign a waiver that releases the company from any liability claims. 

“We already see waivers everywhere,” Lytton said. “Many people aren’t aware of them.”

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While more businesses might begin looking into liability waivers to protect from suits dealing with coronavirus spread, the real question is whether these waivers are enforceable, Lytton said. The court must determine, based on three factors, if the waiver is enforceable after a suit is brought.

In order for the waiver to hold up in court, the customer must first have had proper knowledge of the risk. Second, the person must have voluntarily assumed that risk, free of pressure or necessity, which is why you are likely not going to see COVID-19 liability waivers at your local grocery store. 

Finally, the waiver cannot be against public policy. For example the waiver cannot absolve someone from liability for assaulting you. The waiver has to be within the realm of the law. 

Courts have the challenge of determining situations caught in the middle, for example health clubs — places that may be considered essential by some, but non-essential by others, Lytton said. 

Consumers may be concerned if businesses will participate in riskier practices like lack of social distancing if protected by liability. While it’s possible, most businesses most likely wouldn’t risk losing customers, said Stanford law professor Robert Rabin.  

“There’s always a possibility that some businesses under the cloak of that safe harbor would not be as careful as they would otherwise be,” he said. 

Since the start of 2020, there have been 3,075 complaints filed across the U.S. in regards to coronavirus, according to a COVID-19 complaint tracker from Hunton Andrews Kurth LLP, a law firm that has been maintaining the database.

As far as negligence claims, there are eight complaints dealing with personal injury and four wrongful death complaints from exposure to COVID-19 in a public place. There is also one personal injury/wrongful death complaint from outside an employment, consumer or healthcare setting. 

Claim cases only make up a handful of the total complaints regarding COVID-19. The majority of complaints deal with insurance, prison conditions and civil rights, a pattern most likely to continue, Rabin said. 

Why? Wrongful injury or death is a hard case to make for coronavirus because not only does the claimant have to prove negligence, but they must also prove causation — that is, they must prove the place they are suing was the source of the virus. It’s easier to make a case in instances that occur in enclosed settings, like nursing homes or cruise ships. 

“That is the big point — to establish causation,” Rabin said. “Causation is very tricky in most cases.”