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Use of Waivers to Reduce Liability from COVID-19

As Colorado gets back to work, businesses should consider requiring customers to sign liability waivers.

By Brad H. Hamilton

As businesses get back to work in Colorado, they do so under the COVID-19 cloud of uncertainty and risk. Phased re-opening dates, who and how many people are permitted in a facility at one time, socially-distant altered work spaces, and policy changes to create safer environments are just a few of the challenges businesses are facing as they adhere to a rolling list of state and federal operating guidelines.

Businesses should also consider requiring customers to sign liability waivers. Liability waivers are common in Colorado because of our culture of physical fitness and outdoor activity. We sign liability waivers when we go skiing and on any organized, guided, outdoor adventure like rafting or climbing, and those waivers are generally enforceable (Raup v. Vail Summit Resorts, Inc., 233 F. Supp. 3d 934 (D. Colo. 2017), aff’d, 734 F. App’x 543 (10th Cir. 2018)).

Contractual waivers of liability are recognized under Colorado law, but are construed narrowly and “closely scrutinized” to make sure that the agreement was fairly entered into and that the intention of the parties is expressed in clear and unambiguous language (Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981)).

Liability waivers are not favored by the courts, but if the language is clear, courts must implement the parties’ intent and understanding (17A C.J.S. Contracts § 448). The wording must be so clear and understandable that an ordinary person will know what is being contracted away – you must have the rights words!

The waiver should specifically reference COVID-19, the contagious nature of COVID-19, and provide some information about person-to-person risk. It should describe possible methods of transfer (breath, physical contact, contact with stable surfaces), state the customer is voluntarily and knowingly assuming the risk of exposure to or infection by COVID-19 in using your services or premises, and that such exposure or infection may result in personal injury, illness, permanent disability, or death. The customer should also acknowledge that the risk of becoming exposed to or infected by COVID-19 may result from the actions, omissions, or negligence of the customer, or your employees and other customers.

A waiver is not a substitute for careful planning and implementation of safety procedures for your employees and customers. In fact, a waiver will only insulate you from liability for simple negligence, “and in no event will a release provide a shield against a claim for willful and wanton negligence” (Jones v. Dressel).

Nevertheless, a wavier may be a valuable tool to help prevent or reduce the risk of claims from customers alleging that your business or service made them sick.

THIS INFORMATION IS NOT INTENDED AS LEGAL ADVICE. SEEK SPECIFIC LEGAL ADVICE BEFORE ACTING.

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