Covid-19 Waivers – Are They Enforceable?
As businesses have begun to reopen in Georgia, there has been an explosion of liability waivers used by companies across the state in an attempt to limit their legal exposure in the event that an employee, customer, or attendee tests positive for COVID-19 after leaving their establishment or premises. More forms, terms and conditions, boxes to check and accept on your computer or mobile device. Are these waivers enforceable?
Generally, liability waivers are enforceable in Georgia with one big exception: the waiver cannot relieve a person, entity, corporation, or premises owner of liability for acts that constitute gross negligence or reckless, willful, wanton or intentional conduct.1 Whether a company has acted recklessly is a case-by-case determination, dictated by the particular circumstances. When making that determination, a couple of relevant questions to ask may be (1) “What efforts, if any, has the company taken to keep you safe and when?” and (2) “Does the company limit occupancy, require social distancing and masks, or take other well-known safety measures?” Depending on how those questions are answered, a waiver may not protect a company that chooses to disregard well-known safety requirements imposed by government entities or public health organizations.
It is important to note that Georgia’s General Assembly recently passed a law providing certain protections to individuals and companies from COVID-19-related lawsuits so long as that person or company complies with one of the following: (1) the person or company obtains an appropriate waiver consistent with the new law or (2) the person or company places a sign in plain view before the entrance that reads, “Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.”
Bottom line: whether you sign a document, check an “Accept terms and conditions” box on an app, or even purchase a ticket with a waiver clause included, remember to be safe! Take the appropriate steps to protect yourself and others from spreading COVID. Look around to make sure others are doing the same. If not, you might ask yourself: is this something I need to be doing? You may decide it is best to go home and return at a later date.
1 See generally, Holmes v. Clear Channel Outdoor, Inc., 284 Ga. App. 474, 477, 644 S.E.2d 311, 314 (2007):
Exculpatory clauses in which a business relieves itself from its own negligence are valid and binding in this State, and are not void as against public policy unless they purport to relieve liability for acts of gross negligence or wilful or wanton conduct. Neighborhood Assistance Corp., etc. v. Dixon, 265 Ga.App. 255, 256(1), 593 S.E.2d 717 (2004). However, because exculpatory clauses may amount to an accord and satisfaction of future claims and waive substantial rights, they require a meeting of the minds on the subject matter and must be “explicit, prominent, clear and unambiguous.” (Citation and punctuation omitted.) Parkside Center v. Chicagoland Vending, 250 Ga.App. 607, 611(2), 552 S.E.2d 557 (2001).