Editor’s Note: In this weekly column “Cross Exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. Post your questions below. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
It’s the latest Disney experience: waivers of Covid-19 liability for one and all! The novel coronavirus “is an extremely contagious disease that can lead to severe illness and death,” Disney, while also reassuring that they have adopted “enhanced health and safety measures” now warns its potential customers: “By visiting Walt Disney World Resort, you voluntarily assume all risks related to exposure.” A phased reopening of the shopping and dining area at Disney World is scheduled to begin May 20 and continue May 27.
Disney will hardly be alone in issuing such a warning and advising customers that they assume the risk of entering. It’s time to get used to seeing this kind of legal jargon frequently in your life, as businesses reopen across the country and try to find ways to shield themselves against potential lawsuits from patrons who might contract the novel coronavirus on their property.
Whether you knew it or not, this isn’t all that new. As a consumer, you already waive – or simply put, give away – your legal rights all the time. If you’ve ever joined a gym, gone skiing or taken an indoor rock climbing class, you’ve almost certainly signed a waiver stating that you know the activity is dangerous and you won’t sue if you get hurt. Those “permission slips” you sign for a child’s little league team or a school field trip are often just another form of liability waiver. In today’s litigious world, you’ll find waivers are common not only for dangerous physical activity, but also for mundane activities – especially for any likely to involve children.
Even if you don’t physically sign anything, you sometimes agree to a waiver simply by your actions. If you have the ticket from the last time you went to a professional sporting event or a concert (or when you get yours the next time any of us is able to go to one), flip it over and read the fine print about what rights you surrender just by walking through the gate – “assumption of risk,” in legal lingo.
It might feel particularly jarring to sign a Covid-19 waiver before stepping through the front gate at Disney – put your name here to give Mickey your right to sue! But this trend toward liability waivers for Covid-19 will become a common and reasonable strategy for businesses walking the narrow tightrope between re-opening to the public and protecting themselves against potential lawsuits. We are just at the beginning of what promises to be years’ worth of litigation over this disease. Plaintiffs already have filed Covid-19-related personal injury lawsuits against businesses and governments across Europe, and a leading American legal publication warns businesses to “prepare for personal injury litigation in the age of Covid-19.”
The law so far is untested, and will evolve. As people begin to file cases, and those cases move through the courts, look for key questions to arise: Do these waivers work? Can companies truly insulate themselves against lawsuits, and do people truly surrender their rights to sue when they sign a waiver?
There is no one answer. Laws differ state by state and outcomes will vary according to the particular facts of the dispute. But certain general principles and key questions emerge. Most but not all states enforce waivers – preventing a person from suing – in at least some circumstances. States vary as to how much deference they give to waivers, and some courts strike down waivers deemed to be too lopsided against the consumer, or against the broader public interest. Courts sometimes – but not always – require that waivers be clearly written and understandable, and fairly bargained for between the parties. So when you see one of those tiny-print waivers chock full of legalese and wonder if it really would hold up in court – the answer is it largely depends on what state you’re in.
Even where waivers are enforceable, they typically only go so far. They usually protect a company only for negligence – meaning failure to use reasonable care – but not for more serious conduct including gross negligence, recklessness or intentional acts.
Of course, this raises another set of pivotal questions. What is “reasonable care,” and how will judges and juries apply that general legal concept to the real world as it is now shaped by this pandemic? How far do businesses have to go to protect against infection and spread? Is it enough to warn? How dire must the warning be? Is it sufficient to require masks, or to do nightly sanitization, or to conduct temperature checks? And if customers get sick, can they prove that they contracted the virus at or because of a particular business?
It is impossible to know the answers right now but, rest assured, the lawsuits will come, and the questions will be asked and Americans will demand they be answered. Expect businesses across the country to follow Disney’s effort to insulate itself from potential Covid-19 liability. Such waivers are likely here to stay.