Many cities or towns have reopened their doors to residents and remain interested in limiting their liability for the spread of COVID-19. Some have expressed interest in requiring individuals to sign COVID-19 waivers in order to access some of the facilities or to participate in some public or private events.
Such waivers are aimed at shifting the risks associated with COVID-19 from the municipality to the individual. The risks include infection, sickness and possibly death. The waiver may also include recommendations for preventative measures such as social distancing, having one-way entrances or exits and providing sanitizing stations. Although the document can serve as a warning or deter an individual from filing a lawsuit, municipalities should be aware of the likelihood of these waivers being upheld in court.
The liability issues for to communicable diseases like COVID-19 do not necessarily revolve around allowing access to a public facility. The issues can also be related to the municipality assuming a duty to protect from a known danger on its property. The duty or protection that the municipality assumes could be in the form of requiring face masks, sanitization, limiting access as well as checking temperatures. If a municipality assumes this duty, it must exercise the duty in a reasonable manner.
South Carolina law on the enforcement of exculpatory agreements has strict restrictions. Exculpatory agreements are agreements which include clauses that relieve a party of liability from a known risk or danger. Although exculpatory agreements can be valid in South Carolina, they are not favored by the law and will be strictly construed against the party relying on them. In order for an exculpatory agreement to be valid, it cannot preclude a cause of action for gross negligence, cannot be ambiguous, and cannot waive any cause of action for any reason.
Although pandemic waivers could serve as a warning or deter legal action, courts have not yet deemed them applicable to a pandemic. If a municipality chooses to require residents to sign waivers, they should realize that they do not have blanket immunity from lawsuits.
This information is for informational purposes and not intended to constitute legal advice. The South Carolina Municipal Insurance and Risk Financing Fund general liability hotline offers members 10 free hours to discuss liability issues with an assigned attorney. For more information contact Cindy Martellini at cmartellini@masc.sc or 803.933.1235.