Arizona’s astonishing number of coronavirus cases have many business owners wondering whether a COVID-19 liability waiver is necessary or worth it.
The premise of a liability waiver is that the person signing the waiver explicitly recognizes there are risks involved in the activity with which one is about to engage (skydiving, bungee jumping, race car driving, etc.). In legal terms, this recognition of the risk is used as a defense called “assumption of the risk.” Essentially, this means the business owner should not be liable for injuries a person sustains while engaged in the risk-producing activity because the person was aware of the risk, yet voluntarily proceeded.
The most effective liability waivers are clear and unambiguous, and written in simple terms that are understandable to the ordinary person. A waiver should clearly state the person signing is voluntarily waiving any claim to liability against the business owner for damages. The waiver should state precisely what types of risks the person is assuming. Blanket waivers, without specific reference to the risks involved, will likely fail. For COVID-19 purposes, the waiver would specifically refer to the risk of being exposed to COVID-19 while on the premises.
Although a liability waiver may seem enticing, there are important things to keep in mind that may outweigh the benefit of adopting a liability waiver.
- Liability waivers are disfavored in Arizona, and the validity and scope of a contractual assumption of this risk is a question for the jury, not a judge. Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 410 (2005).
- A liability waiver will not excuse failure to comply with any governmental orders or other legal requirements.
- Customers may feel uncomfortable being forced to sign a waiver and may choose not to enter. This may ultimately have a negative effect on the business.
- No waiver will excuse intentional conduct or gross negligence.
- The waiver is likely unenforceable against minors.
For many, these drawbacks may outweigh the potential benefit of adopting a liability waiver.
The attorneys at Mesch Clark Rothschild can help you determine whether a liability waiver is appropriate for your business. If you have any questions, reach out to us today by calling (520) 624-8886.
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