Liability Waivers During COVID-19 Crisis

The Covid-19 crisis has caused a lot of uncertainty, including in the area of personal injury law. If someone catches the coronavirus at work do they have a claim? What about students returning to school in the fall? Will they be able to sue their school or university if there is an outbreak? Some businesses are now looking at using liability waivers to restrict the ability of people to bring claims associated with the coronavirus.  Liability waivers are not new and have been used by businesses for years. However, with waivers being in the news many are now taking a closer look at how they are used and asking if they are enforceable.

What is a liability waiver?

A liability waiver or release of liability agreement is a legal document that asks the person signing it to agree to waive certain legal rights in order to participate in an activity. In Illinois, it is legal for parties to enter into a contract that would provide immunity for negligent conduct.

A liability waiver could include language like the following:

I agree to assume all risks and expenses due to any injury that may occur as a result of my participation in this activity.

Participants in team sports, summer camps, or activities like horseback riding or gymnastics often are required to sign a liability waiver prior to being allowed to participate. These waivers or releases will be valid and enforceable unless a court finds one or more of the following factors: 1) there is a substantial disparity in the bargaining position of the two parties; 2) upholding the waiver would be contrary to public policy, and/or 3) there is something in the social relationship between the parties that would weigh against upholding the waiver. Fraud also can invalidate a waiver. See for e.g. Oelze v. Score Sports Venture, 927 N.E.2d 137 (1st Dist. 2010).

Whether a liability waiver is valid or invalid would depend on a number of factors, including the identity of the parties and their relationship to each other, the circumstances surrounding the signing of the waiver, the ages of the individuals signing the waiver, the nature of the activities involved, etc.

Conduct that Cannot be Waived

Liability waivers only apply to what is defined as negligent conduct. Negligent conduct is the failure to exercise ordinary care. Waivers cannot immunize a party for what is called willful and wanton conduct. Willful and wanton conduct is conduct that lies somewhere between negligent and intentional conduct. It is sometimes referred to as reckless conduct or conduct that shows a conscious disregard for the safety of others.

Liability Waivers and Children

Parents generally cannot waive, compromise, or release a minor child’s cause of action unless there is some statute or judicial order that would make the waiver effective. However, a parent who signs a waiver may relinquish any claims the parents may have had for injuries to their child. See Meyer v. Naperville Manner, Inc., 634 N.E.2d 411 (2d Dist. 1994).

Liability Waivers at Work

Illinois workers cannot sue their employers for damages in the state of Illinois and must instead pursue recovery through the state’s worker’s compensation system. Workers in the state of Illinois have a right to receive worker’s compensation benefits and this right generally cannot be waived.

Liability waivers or releases are legal contracts. Like any legal document you should make sure you read and understand the document before signing it. It is always advisable to consult with an attorney prior to entering into a contract. If you sign a liability waiver you could be relinquishing rights you would otherwise have under Illinois law. However, not all liability waivers are enforceable. If you are injured and you signed a liability waiver an experienced lawyer can help you determine whether the waiver is valid. If the waiver is not valid you may still have a claim for damages.

Bolen Robinson & Ellis, LLP