Should You Use a COVID-19 Liability Waiver?

Here in the U.S., business owners and their clients alike are breathing a collective sigh of relief as coronavirus “stay-at-home” orders are gradually being relaxed or lifted. I practically shouted in jubilation yesterday after receiving my first haircut in three months, a simple but impactful symbol of a return to normalcy and routine. However, for many of us, such cathartic joy is subdued by varying degrees of trepidation as reopenings of non-essential businesses continue in spite of COVID-19 cases being on the rise in many areas. Some businesses have chosen to further delay their reopenings out of an abundance of caution. I don’t blame them. Having recovered from COVID-19 myself, I still approach every person around me as though they are a potential incubus of some new strain of this horrible virus. Alas, it appears we will be dealing with this virus for some time, so at the moment, the best we can do is adapt to the current environment, which includes modifications to protect ourselves and our respective photography operations, both physically and financially.

As businesses cautiously but optimistically resume operations, many are posting notices or asking customers to sign a COVID-19 waiver. Earlier this year, the California Association of REALTORS^® released a form directed toward entrants to listed properties, which, true to form, consists of three pages of the signer basically acknowledging, “I know there’s a pandemic and I won’t sue you if I get sick from entering this property.” Even some restaurants are requiring diners to assume in writing all risks associated with COVID-19 becoming an uninvited dinner guest, which will be an abrupt reminder to many folks that we are still waist-deep in this pandemic. I’m used to contracts being discussed over dinner—not the other way around. It’s hardly an appetizing subject, but maybe at least it’ll keep me from demolishing the breadbasket.

Given the proactive stance many businesses are taking to shield themselves from liability, how do the potential legal implications of COVID-19 affect us as photographers? Do you need a coronavirus waiver to protect your business? Would such a document even stand up in court? In this article, I’ll provide some talking points and resources to aid in your discussion with your own attorney (a discussion I highly recommend you have).

DISCLAIMER: I am not an attorney and nothing in this article should be construed as legal advice. The topics and content outlined in this article are meant to provide talking points for a conversation between you and your attorney. Some or all of the topics discussed here may not pertain to your individual circumstances, and the information is provided without warranty or guarantee of any kind.

Are You Potentially Liable for COVID-19 Exposure?

My professor in a business law course taught me a useful axiom within the legal community, which provides some insight into how attorneys argue their client’s case to the court: “If you have the facts, argue the facts. If you have the law, argue the law. If you have neither, argue equity [read: fairness].” This may actually be a more demure adaptation of a quote from Carl Sandburg—his recommendation for arguing equity was to “pound the table and yell like hell.” I don’t know which quote came first, actually, but I digress. The point is that COVID-19 is uncharted territory for most courts. There doesn’t seem to be much legal precedent that would set the stage for how such liability cases should play out. While that hasn’t stopped some people from suing over COVID-19 exposure, according to SFGATE, as of mid-May there were only 45 COVID-19 liability suits, most of which are from infections relating to cruise ships.

So, are you potentially liable if you expose a client or third party to COVID-19? Like many legal questions, the answer is a solid “maybe.” Absent a specific legal precedent regarding transmission of a virus, there is a possibility it could be argued that you were somehow negligent if you failed to take reasonable steps to prevent exposing a client or third party to the virus. The claimant would likely have to prove three things: 1) you were negligent, 2) you were the source of exposure, and 3) they were harmed in some way, whether by lost wages, reduced quality of life, expenses incurred in having their home or building decontaminated, etc.

Proving Negligence

You may be unaware of this, but you have a responsibility to take reasonable measures to protect the safety of others—even people you’ve never met. “Duty of care” is a term of art that refers to this obligation. For example, if you own land on which hunters regularly trespass as a shortcut to their hunting site, you have reason to expect that they or others will do so again. If you dig a giant hole and they later fall into it, you’re probably liable. It doesn’t matter that they were trespassing—you were aware that people would cross your land and possibly fall into the hole. “No trespassing” signs and a warning sign near the hole would be an example of reasonable measures to mitigate that kind of risk. That word, “reasonable,” is generally an important factor in proving liability. Note that the standard for proving liability of this nature will likely vary from one jurisdiction to another.

How might duty of care (and negligence thereof) apply to COVID-19 exposure? Generally, the claimant would probably argue one or more of the following:

• You failed to take steps a reasonable person would have taken to mitigate the risk of exposure (there’s that word again: ”reasonable”). Such steps might include taking your temperature regularly, using hand sanitizer, avoiding conducting photo shoots when you or your assistant have symptoms, etc.
• You failed to follow directives from your local health authority. This might include not wearing a face covering or other specific guidelines/requirements.
• You failed to take steps you promised you would take. This might include wearing shoe coverings or gloves while at a property.
• You failed to disclose or possibly even lied about past exposure, symptoms, or positive test results.

Note that even a signed waiver comes with its own inherent limitations (see later section regarding enforceability). Specifically, if you are shown to be “grossly negligent,” meaning you were reckless or showed a conscious disregard for the rights and safety of others, you could still be found liable. Conducting a photo shoot right after receiving a positive test result, or even while merely exhibiting symptoms, could be considered grossly negligent, especially in light of various warnings from health authorities.

Proving Causation

In the same article from SFGATE, attorney Richard C. Bell notes that proving causation is a key element in winning a liability case. However reckless or negligent you might have been, you or your crew would generally have to be the cause of the exposure to be liable. That would be very difficult to prove in a situation like this. For one thing, current methods of contact tracing are helpful tools in encouraging people to self-quarantine but don’t necessarily rule out all the various potential causes of exposure and infection. Secondly, if you were never tested, you’d have no confirmation of having ever had the virus, and even if you were, the results may be subject to HIPAA and other privacy laws relating to medical records, resulting in lengthy discovery that would prove costly to both sides. The previously noted cruise ship example would be an example where causation might be more possible to prove due to the length of time passengers were aboard the ship and other factors that could rule out other means of transmission.

Proving Damages

The types of damages a person might attempt to claim after being exposed to the novel coronavirus will likely depend on multiple factors. Extreme cases would be if an individual gets critically ill or dies, or an entire office building has to be professionally decontaminated due to exposure. Damages are also where the “equity” argument frequently comes into play. Even if someone has not suffered a specific financial loss, they could argue that the impact of exposure to the virus was harmful to them in a way that warrants financial relief. If the claimant has to self-quarantine in a hotel away from their family or suffers emotional distress from an exposure attributable to you, they may argue such harm should result in a financial award to them in judgment.

The Best Defense

If it’s so unlikely you would be proven liable, why bother with a waiver? In my last article on business insurance, I mentioned that innocence doesn’t prevent you from being sued and incurring copious legal fees to defend yourself. Unfortunately, business insurance does not typically cover liability for COVID-19 exposure/transmission. Large companies often carry policies to protect them in the event they become the source of a large-scale contamination, but such policies often run well into the six-figure range. It would seem that, as they say, the best defense is often a strong offense. At the very least, a well-written waiver provides documented evidence that you sought to inform your client and related third parties of the risks and that they affirmatively agreed to assume those risks. It’s not a bulletproof defense and may not apply in all circumstances, but it’s sort of like wearing your seatbelt while in the car. It’s not magic, but it immensely helps your chances of avoiding harm.

Are Waivers Enforceable?

In a recent JDSupra article, Sarah Smyth O’Brien and Jorge Solis of Butler Snow LLP note that while the courts have yet to rule on a waiver of this nature, basic legal principles would likely apply. Liability waivers are generally enforceable, subject to certain conditions and limitations. O’Brien and Solis caution that Connecticut, Montana, and Virginia have all refused to enforce liability waivers, and enforceability may otherwise still vary by state, but aside from those three states, most are known to respect and generally enforce the concept.

If you’ve ever gone skydiving or even opened a gym membership, you were likely required to sign a waiver. Even though jumping from a perfectly working airplane seems to involve some fairly obvious risks, skydiving waivers will usually specifically outline the things that could go wrong, including the fact that you can follow all directions and still be injured or killed. One example would be if your parachute malfunctions or fails to deploy. It’s important to note, though, that even the most clearly worded of such waivers might have limitations. What if your parachute is improperly packed due to recklessness by an employee, resulting in an accident? You (or your estate) would likely stand a much better chance of prevailing in court, even if recklessness is specifically listed in the waiver.

One or more terms of a waiver may be considered unenforceable for several reasons. Even with an otherwise enforceable waiver, terms that waive liability for intentional acts or gross negligence would likely not hold up in court based on case law. Similarly, fraud, an intentional tort, would likely be excluded from a waiver. Terms that are considered against public policy or unfairly weighted against the person signing it (also known as a contract of adhesion) would also generally be unenforceable in court.

Best Practices and Considerations for a Waiver

If you and your attorney decide it’s best to take the precaution of using a waiver, here are some questions that you will want to consider and discuss with your attorney, whether you are drafting your own waiver or working from a template:

• Is the waiver specific about the virus, the circumstances of potential exposure, and the specific risks intended to be waived?
• Is the waiver easily understandable to anyone?
• Is a legible text size used throughout?
• Could any terms of the waiver be considered unfairly weighted against the person signing it?
• Does the waiver place any specific preventative obligations on you that you are unwilling or might be unable to carry out?
• Could any terms of the waiver be considered against public policy?
• Does the waiver potentially contradict or modify other terms within your contract with the client?
• Do the terms of the waiver still apply when the meaning is construed strictly against the photographer?
• Is it in your best interest, and permissible by law in your jurisdiction, to require that claims relating to liability from COVID-19 exposure be resolved in binding arbitration rather than court?

To assist photographers in preparing a waiver, the Professional Photographers of America have assembled a COVID-19 waiver that could serve as the basis for your own document. A more involved version not specific to photography can be found on the website of law firm Bryan Cave Leighton Paisner (link in the third paragraph of their article). (Note: these links are provided for reference only, and neither AP Almanac nor myself endorse the forms, nor guarantee their fitness for any purpose).

The Verdict

Though generally simple enough to draft and utilize, waivers of coronavirus-related liability can sometimes raise eyebrows among clients and their associates, and in some cases, they may refuse to sign, possibly under the advice of their own attorney. They present one more document to explain and get signed, one more task to cross off your to-do list, one more uncertainty that could hold up your photo shoot. You and your attorney should also take into account the likelihood of whether you will actually be subject to such claims. Generally, the most likely targets of liability claims of this nature would be larger companies with presumably greater financial resources. Your risk may depend somewhat on what assets you have to protect and the nature of the photo shoots you conduct, but in the coming months, if the courts begin to set precedent for how future cases of this nature are treated, that could dramatically alter the potential risk exposure photographers might face going forward.

No one except you and your attorney can determine what’s right for you. While we are all eager to get back to work, I recommend having this discussion sooner than later. Just like being asked to work for free to get an Instagram mention, the risks associated with COVID-19 liability are another form of “exposure” we should seek to avoid.