As Maine begins its phased re-opening in the midst of the coronavirus pandemic, the risk of exposure to the virus will become more prevalent as members of the public begin to patronize businesses. Business owners will be taking measures to protect their customers and employees, yet they will remain vulnerable to claims of negligence by those who contract the virus. In this new environment, business owners should consider requiring customers and clients to sign a waiver of liability and indemnity agreement.
While a claim of negligence and causation would be difficult to prove, a properly drafted agreement waiving claims for infection by COVID-19 and indemnifying the place of business against its own negligence may provide useful protection to businesses seeking to re-open.
Contractual waivers of liability are enforceable in Maine under certain circumstances, but waivers of liability for a party’s own negligence are strictly construed against the party seeking to avoid liability. Careful drafting is important. To be enforceable, such a waiver must expressly spell out with the greatest particularity the intention of the parties to eliminate liability for negligence of the business owner.
In short, a waiver and indemnity agreement should:
- Identify the risks, including the extremely contagious nature of the coronavirus, illness, and death;
- Include an acknowledgement that customers are responsible for their own health and safety;
- State that the customer expressly assumes the risk of contracting COVID-19;
- State that the customer releases the business, promises not to sue, and indemnifies the business against its own negligence, in bold, clearly stated language.
Each business owner will need to balance its desire to avoid claims and liability against the possibility of alienating customers who are put off by the waiver. The decision to use waivers will vary by industry.
There is no guarantee that a waiver will insulate a business from liability. There will undoubtedly be claims that such waivers are against public policy and enforceability may be tested. Nonetheless, it is wise to use a clearly written, easy-to-understand waiver to help mitigate liability, as permitted by law.
The attorneys at Perkins Thompson are available to assist with drafting waivers appropriate for specific industries and businesses. For additional information, email Julie Ray or Brandon Mazer, or call either of them at (207) 774-2635.