Skiers who get injured on the slopes in Colorado almost always bear the cost of their accidents. On the back of their lift ticket is a broad waiver saying they have given up their right to sue over the unavoidable risks of a dangerous sport.
Stores and restaurants could use a similar tactic to protect themselves against COVID-19 lawsuits, but, first off, it would be difficult to hand every customer a form to sign before they enter the building.
Also, American law also has evolved in a direction that strongly disapproves of liability waivers except in narrow circumstances, usually involving industries or activities that are considered so important to the economy or general wellbeing that they need lawsuit-protection to survive. Ski areas and amusement parks are prime examples, but there aren’t many more.
“Courts don’t like waivers,” said Richard Ausness, a professor at the University of Kentucky College of Law who has written widely about consumer choice and liability lawsuits.
Ausness has written articles suggesting consumers should be able to waive their liability rights to get access to a broader selection of products, for example, or to pay less because the manufacturer doesn’t have to set aside money for otherwise inevitable litigation. He hasn’t found much support for the idea.
Most judges and legal academics believe ordinary consumers aren’t sophisticated enough to understand the rights they are signing away or to assess the true risks of a product or activity, even though the right to freedom of contract is enshrined in the Constitution.
“Where personal injuries are concerned, courts, quite frankly, in products liability don’t recognize any kind of release or waiver at all,” Ausness said. “Over the last 60 years, courts have just flatly refused to enforce them.”
At the same time, manufacturers still produce inherently risky products including automobiles, hang gliders, trampolines and swimming-pool diving boards even though a predictable number of people will be maimed or killed using them. What’s going on?
The risk of getting sued has a lot to do with whether an activity is widely understood to be dangerous, along with the assumed sophistication of the customers. Lawn darts were unreasonably dangerous in relation to the customers likely to use them. Hang gliders are only purchased by people who presumably know how to fly them, and lawsuits over crashes aren’t likely to succeed unless the glider had a clear defect that made it impossible to use safely.
Novel threats also generate litigation. Nobody sued the local grocery store over catching a severe case of the flu or measles, even though measles can be far more dangerous than COVID-19. Customers willingly took on the risk of getting sick from diseases that have been around for a long time. Now they demand plexiglass shields, face masks and hash marks on the ground to enforce social distancing.
In the near term, the law may well reflect these new concerns and businesses will have to follow Centers for Disease Control recommendations and local regulations to be considered compliant. Even then, lawyers will figure out a way to sue, taking advantage of the expansive definition of negligence in U.S. tort law, which can encompass any foreseeable injury that could have been prevented by taking more precautionary measures.
Ausness sees an analogous situation with products liability, where courts give a pass to some highly dangerous products and deliver massive verdicts over injuries caused by others.
“The risk tolerance seems to be highly variable,” he said.
The most important function of a waiver may be to deter nuisance lawsuits, he said. While courts tend to reject waivers in cases involving serious injury, they may present enough of a stumbling block to scare off lawyers in more marginal cases. But to have any legal validity, waivers must be clearly written, understandable by the average consumer and in reasonably large type. How retailers and restaurants could combine that with serving a steady flow of customers coming in their doors would be a challenge.