Using COVID-19 Liability Waivers to Protect Your Business

By John Rafferty — As many institutions take further steps to reopen, most are interested in creating a safe environment and simultaneously, reducing liability for future COVID-related issues. Some institutions have gone so far as to ask that persons receiving services sign liability waivers, which are essentially agreements not to sue, should COVID-mitigation efforts fail.

Pennsylvania courts, however, do not favor liability waivers and will uphold them only when 1) the clause does not contravene public policy, 2) the contract is between persons relating entirely to their own private affairs; and 3) each party is a free bargaining agent to the agreement so that the contract is not one of adhesion. (It’s not one of adhesion if both parties could merely walk away if they so choose.) Kibler v. Blue Knob Recreation, Inc., 184 A.3d 974, 981 (Pa. Super. 2018). When these criteria are not met, a liability waiver is unlikely to be enforceable in Pennsylvania.

John Rafferty is a former Naval Officer, a Fulbright Scholar and works as a Litigation attorney at Gawthrop Greenwood, PC. He can be reached at jrafferty@gawthrop.com or 610-696-8225.