As New Jersey prepares to enter Stage 2 and Pennsylvania readies the last of its counties to move to Green, some businesses have reopened and others prepare to reopen their doors. With restrictions such as reconfiguring space, reduced capacity for customers, ground markers, appointments only, plexiglass dividers, hand sanitizing stations and frequent disinfection, such re-openings will be a far cry from a return to normalcy.

In our Getting Back to Business Alert (part 2) , we discussed how proprietors can reduce the likelihood of being deemed liable to a customer who contracts COVID-19 at the proprietor’s place of business by exercising “reasonable care”. As a part of exercising reasonable care to include complying with local, state and federal guidelines, and in particular the CDC to prevent the spread of COVID-19, certain businesses such as hair salons, museums and fitness facilities might consider having clients and customers sign a liability waiver.

Such waivers are often required when we participate in fitness activities and other recreational pursuits. In both Pennsylvania and New Jersey, liability waivers are enforceable so long as the waivers are worded properly. 

Pennsylvania Liability Waivers must be:
  • Clearly written--the intention of the language must not be open to more than one interpretation. For example, the waiver should include language that the customer/client is entering the business of their own free will and the customer agrees that if they contract COVID-19 at such place of business, the business owner shall not liable.

  • Visually clear- The print must be conspicuous and otherwise easy to read.

  • Signed and dated by the client/customer.

New Jersey Liability Waivers (not quite as clear as the Pennsylvania requirements):
  • The business owner must perform its legal duty of reasonable care.

  • The waiver shall not involve a common carrier, such as NJ Transit, or a utility company, such as PSEG or South Jersey Gas.

  • The parties to the waiver must have equal bargaining power and the contract shall not be unconscionable. In the matter of Stellutti v. Casapenn[1], the plaintiff signed a fitness center’s liability waiver and was thereafter injured while exercising at the facility. The New Jersey Supreme Court held that because the plaintiff understood what she was signing and because the plaintiff could have taken her business to another gym and could have exercised outside of a gym, the contract was not unconscionable. 

  • The waiver should not be against the welfare of the general public. In Stellutti, the Court took note that health clubs promote healthful services, injuries are not unusual at fitness facilities and the patrons thereof should not expect their health club to guaranty protection from inherent risks. The Court accordingly ruled that fitness club liability waivers are enforceable for claims of negligence (but not for gross negligence on reckless endangerment). The case of Walters v. Ymca,[2] further clarified the law in New Jersey. In Walters, the plaintiff was injured at the YMCA, but not while exercising. In this situation, the Superior Court of New Jersey held that because the plaintiff’s injuries were not directly related to an “inherently risky” activity and could have happened at any business location, the liability waiver was not enforceable.
Application to COVID-19

It is certainly arguable that entering into any building where there are other people during this pandemic is inherently risky behavior. No one is being forced to get their haircut or made to visit a museum. Accordingly requiring a patron to sign a liability waiver prior to entering such businesses is not unconscionable. 
The wording of your waiver is extremely important. The language needs to specifically reference COVID-19 and be clearly understood by all signers. To comply with both Pennsylvania and New Jersey case law, it is recommended that the following be included in your liability waiver:

  • That the client or customer warrants that they have had no COVID-19 symptoms (symptoms can be listed) within the past 14 days, have not been in physical contact with anyone known or believed to have COVID-19 or exhibiting any COVID-19 symptoms within the past 14 days and have not visited any “hot spots” with high infection rates (examples may be given) within the past 14 days.

  • As may be the case with any business that you may visit, your entrance into our property for any purpose may expose you to COVID-19. If you decide to enter our property, you acknowledge that your decision is made knowingly and voluntarily, with full knowledge of this risk. 

  • That the client or customer acknowledges that they are signing a waiver that neither the business owner, nor its officers, managers, agents and employees will be liable and that they are released from all claims for damages or other liability should the customer or client contract the COVID-19 virus at the business.

  • The client or customer acknowledges the safety efforts the business has undertaken (these efforts may be listed).

  • The client signs and prints their name and the date.

It should be noted that while the legal rights of adults may be waived, the courts of Pennsylvania and New Jersey are not as lenient when it comes to the rights of minors. As to non-Covid-19 waivers, the courts have not historically enforced them.
Based upon prior case law and the global knowledge of how easily Covid-19 spreads, the courts in Pennsylvania and New Jersey will probably allocate accountability to those who patronize businesses (that comply with recommended COVID-19 safety guidelines) and contract the virus. Because of the newness of everything COVID-19, making use of a liability waiver might be beneficial to your business as an extra layer of protection.

[1] 203 N.J. 286, 1 A.3d 678 (2010)
[2] 437 N.J. Super. 111, 96 A.3d 323 (2014)

This alert is intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have. We are fully operational during this pandemic and stand ready to assist as you navigate this ongoing and developing COVID-19 situation. 
Visit our COVID-19 Legal Response Team Page here