COVID-19 Waivers: FAQs on Waivers During the Coronavirus Pandemic and How Illinois Courts Approach These Exculpatory Clauses
The COVID-19 pandemic has brought uncertainty to so many areas of our lives, including school, work, social activities, and virtually everything else. In the legal arena, COVID-19 is also prompting new litigation around the country that, in the coming months and years, is set to create a whole new patchwork of novel legal theories and case law. One of these unique, untested areas of law is that of exculpatory waivers in the context of COVID-19. Many businesses and organizations – ranging from health clubs and golf courses all the way to President Trump’s campaign rallies – are using COVID-19 legal waivers to limit their liability should a patron contract the virus on their property or during their events. Today, our blog briefly answers a few of the most frequently asked questions regarding COVID-19 waivers and also takes a deep dive into how Illinois courts traditionally approach these documents.
What are “Exculpatory Waivers” and Why Are They So Popular?
Starting with its definition, “exculpatory” is a term typically used to indicate something that clears a party from fault or guilt. Simply put, these clauses are used in waivers to relieve one party of liability. Thus, it makes sense why, for decades, businesses and other entities have used exculpatory clauses to release their own liability should the signer of the waiver suffer an injury while on their premises or using their products. Exculpatory waivers are most popular with businesses that are responsible for a customer’s personal property or physical well-being at a certain point in time. Classic examples of businesses that regularly use these waivers include fitness centers, concert venues, and amusement parks.
How Do These Waivers Relate to the COVID-19 Pandemic?
In the context of COVID-19, many businesses are starting to use exculpatory waivers in an effort to shield themselves from liability should their patrons contract the virus. This trend has now expanded the usage of these liability waivers outside of the just the industries mentioned above and into nearly every industry that interacts with the public. Most recently, as colleges and universities struggle to safely engage in on-campus learning during the pandemic, a highly debated issue has been the proposed usage of COVID-19 waivers in college athletics. However, thanks to a response by U.S. Senators Cory Booker and Richard Blumenthal, the NCAA prohibited member schools from forcing student athletes to sign COVID-19 waivers.
If I Signed a COVID-19 Waiver, Am I Barred from Filing a Lawsuit?
Not necessarily. As with virtually all contracts, there are a number of ways in which courts may deem COVID-19 waivers to be unenforceable. Those who have signed such waivers and are considering legal action should still contact an experienced attorney to discuss the legality of the contract. However, it is also important to point out that, even if your COVID-19 waiver is rendered unenforceable by a court, that does not ensure that you have a winning case. In COVID-19 negligence cases (many of which will likely end up involving plaintiffs that signed liability waivers), the toughest part for plaintiffs will be establishing causation, i.e., that the defendant caused their injury even in light of the unpredictable nature of Coronavirus.
How Do Most States Approach Exculpatory Waivers?
Most states generally deem exculpatory clauses to be enforceable, though courts of different states vary with respect to when liability waivers should be rendered unenforceable. Courts in only three states – Louisiana, Montana, and Vermont – maintain a blanket prohibition on the use of exculpatory waivers. Other states like California permit entities to use liability waivers, but also assess those waivers under strict guidelines that eventually render most of them unenforceable. Conversely, a group of states including Alabama, Delaware, Georgia, Idaho, Michigan, and Ohio maintain fairly lenient standards for the enforceability of liability waivers.
How Do Illinois Courts Approach Exculpatory Waivers?
In Illinois, courts regularly toss out liability waivers, as the state has a policy of generally disfavoring such contracts that limit a business’s liability. Accordingly, Illinois courts interpret the language of the agreement against the drafting party and ensure that each waiver contains “clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses.” Oelze v. Score Sports Venture, LLC, 927 N.E.2d 137, 147 (Ill. App. Ct. 2010).
The state also holds that, for a liability waiver to be enforceable, the parties must not display any disparity in bargaining power or any type of special relationship affecting whether the agreement should be enforced. While Illinois courts do not require an exculpatory clause to contemplate the exact activity that resulted in the plaintiff’s injury, it still must demonstrate that “the danger which caused the injury was one which ordinarily accompanies the activity.” Johnson v. Salvation Army, 2011 IL App (1st) 103323 (2011). Finally – and often times most importantly – the waiver must not be contrary to public policy. Illinois courts regularly invalidate liability waivers on the basis that they violate some aspect of public policy.
For purposes of applying Illinois’ legal standards, it may be helpful to see these ideas in action in one of the state’s most cited exculpatory waiver cases: Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581 (5th Dist. 1990). In Garrison, the plaintiff was using a bench press at defendant’s fitness center when the bar suddenly slipped from its resting point and fell on the plaintiff’s neck, thereby crushing his trachea. The defendant filed a motion for summary judgment on the basis that Garrison’s membership contract contained an exculpatory clause, and the Illinois courts granted this motion.
Namely, the Fifth District Appellate Court found the language of the agreement to be sufficiently clear, as it “stated that each member bore the ‘sole risk’ of injury that might result from the use of weights…” The Court also noted that Garrison’s signature was not obtained through fraud, unequal bargaining power, or any type of special relationship. Moreover, the Court reasoned that his injury fell directly within the scope of “possible dangers ordinarily accompanying the activity of weight-lifting.” Therefore, since no aspect of the defendant’s exculpatory waiver violated public policy, the Court held that the defendant could evade liability through its exculpatory waiver.
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