September 15, 2020
How Wisconsin courts and juries will approach lawsuits over exposure to COVID-19 is currently unknown. What does seem certain is that these lawsuits will occur. With COVID-19 cases ramping up across most of Wisconsin recently, businesses, organizations, and event hosts are consistently pondering what they can do to limit their liability in the event a customer, guest, or even an employee contracts COVID-19 at their place of business. In addition, businesses may be denied coverage for COVID-19 claims under their CGL policies because of various exclusions that are in most policies, leaving businesses directly responsible to defend lawsuits and pay any damages.
As an obvious result, COVID-19 waivers have been appearing with frequency as businesses seek to reduce their exposure for claims related to the virus. Many of my clients seem to be under the common misconception that a liability waiver is certain to be enforceable. However, the Wisconsin Supreme Court has been very clear that Wisconsin law does not favor waiver agreements. In practice, these agreements are often deemed unenforceable by Wisconsin courts. Given the novel nature of the COVID-19 virus, it is simply not possible to determine how Wisconsin courts will interpret waivers designed to limit liability related to the virus. Precise drafting of these waivers in line with the decisions of the Wisconsin Supreme Court and Court of Appeals is essential if a business hopes to enforce a waiver.
In order to be enforceable in Wisconsin, a waiver must satisfy three tests: (1) the waiver must not be too broad or all-inclusive; (2) the waiver must clearly communicate the nature and significance of what is being signed and what rights are being waived; and (3) the signer must have an opportunity to bargain over the language in the waiver. In this context, a waiver should be narrowly focused on contracting the virus due to the negligence of the business or its employees. The waiver should be very clear that a signer is relinquishing the ability to sue the business for negligence. Unfortunately, there has been no guidance as to what constitutes an acceptable “opportunity to bargain.” However, simply refusing entry to those who refuse to sign the waiver as-is is not sufficient. Given the admittedly confusing law at issue, an experienced attorney should review waivers, especially in Wisconsin.
The above article appeared in the September 2020 Hudson Neighbors magazine.