You’re dining out for the first time since the shelter-in-place order went into effect. You walk in with your mask on and have your temperature taken. Then, you’re asked to sanitize your hands. Next, you’re told you’ll have to read the menu on your phone and your table is only reserved for 90 minutes. Finally, you’re asked to sign a liability waiver acknowledging the risks of contracting the coronavirus.
This may be the new normal for dining out. It could be the same for working out at the gym, going to the dentist or getting your haircut. While you might be used to signing a liability waiver for activities that carry some risk like skydiving or horseback riding, and you could have already signed one if you belong to a gym (which releases them from responsibility if you incur any injuries while on their premises), signing one before getting a haircut may feel a bit odd. We talked with legal experts to help you understand why they’re popping up everywhere and what you need to know if you sign one.
Businesses still have an obligation to protect their customers by following the rules of the state or county and putting sanitation measures in place, even if it requires customers to sign a liability waiver. “The liability waiver is a way to de-risk the situation, but this isn’t Captain America’s shield,” Bay Area contract attorney Jesse Birbach said. “You still have the obligation to protect your customers.”
Just because you sign a waiver, it doesn’t mean a business would be immune if there was a COVID-19 outbreak that could be traced back to one specific restaurant. If the customers can prove gross negligence, like the servers weren’t wearing masks and there was no hand sanitizer, for example, the waiver may not do much good if challenged in court. If the restaurant took all the necessary precautions and the document was specific and worded properly, they may be waived of liability.
Liability attorney Richard C. Bell said these are the ways such cases are typically judged, but there have yet to be any examples we can point to. “This is going to be very interesting because we’re in uncharted territory,” Bell said. “The courts have never ruled on this before.”
He said the wording in the waivers is extremely important, especially in California. The language used needs to be extremely specific about the virus and the circumstances, very easily understandable to anyone and have highly readable text (e.g. no small fonts).
Bell said it’s also important to remember that you as a customer have to do your own assessment of whether a business appears to be taking the necessary precautions for public health. “If someone wants you to sign a waiver, you should ask them everything they’re doing to protect your health and safety,” Bell said. “You have an absolute right to ask questions. Consumers forget that they have power.”
While the waivers might become common, Bell doesn’t think they’ll be absolutely everywhere you go and he doesn’t ultimately think there will be a lot of lawsuits brought against the average restaurant or gym. He said as of mid-May, there had only been 45 COVID-related personal injury or death cases filed and more than half of them were related to contraction on various cruise ships.
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Birbach said especially because of the nature of the virus, with its long infection period and the high prevalence of asymptomatic cases, it’s going to be difficult to determine causation, the key in winning any liability case.
Still, large companies may be looking for an extra layer of protection as they reopen, especially those with deep pockets that may be advised by their lawyer to require one. Barry’s, a popular chain of class-based gyms with locations across the globe, recently sent out a waiver for all its customers to sign before returning to the gym, whenever that may be. When asked for more information, a spokesperson for the company told SFGATE, “We recently sent a digital waiver to our community which reinforces our commitment to provide a safe environment for our employees and clients to the very best of our ability.”
As with any liability waiver, Birbach said it’s important to read them carefully and fully before signing.