Friday, May 22, 2020
Lawyering Challenges in Pandemic Times: How to Tell Clients What They Don't Want to Hear about Waivers of Liability
Recently, I had two overlapping communications. One was via email, with a lawyer who is advising community groups on whether, how, and when to reopen summer activity programs for children. The second was by phone, when a gym I belong to called to advise it was reopening in a few days and would honor my prepaid short-term membership, the otherwise expired membership I'd just happened to purchase on February 1. One condition of returning to the gym would be my signature on a Covid-19 specific release of liability. These conversations caused me pause, in part because I teach Contracts, a first year course, and we often discuss the viability of "releases of liability."
In connection with the first conversation, I reread and shared a copy of a Pennsylvania Supreme Court case, Feleccia v. Lackawanna College, 215 A.3d 3 (Pa. 2019). The parties presented two questions to the court: (1) whether the Pennsylvania college was required to have qualified medical personnel present at intercollegiate athletic events to satisfy a duty of care to the student-athletes, and (2) whether an exculpatory clause releasing "any and all liability" is enforceable as to negligence in the absence of any specific reference to "negligence." In a detailed analysis, with two justices filing concurring and dissenting opinions, the Court concluded:
For all the foregoing reasons, we hold appellants [the College parties] had a duty to provide duly licensed athletic trainers for the purpose of rendering treatment to its student athletes participating in athletic events, including the football practice of March 29, 2010, and there is a genuine issue of material fact regarding whether appellants breached this duty. Moreover, although the Waiver bars recovery for appellees' damages arising from ordinary negligence, we hold the Waiver does not bar recovery for damages arising from gross negligence or recklessness, and there remain factual questions regarding whether appellants' conduct constituted gross negligence or recklessness.
I think it is fair to predict that clients who actually seek a lawyer's advice before reopening operations in the wake of easing Covid-19 restrictions are hoping to hear that "a release" will protect them from liability. I think I can also predict that lawyers, in any state, will find it challenging to give legal advice in this environment without significant caveats, especially about the use of releases.