Nonessential Businesses and Liability Waivers in the Time of COVID-19

Abstract

States are gradually reopening after months of lockdown. However, the risk of exposure to the deadly COVID-19 virus still remains. While states would like to have the economy up and running, the price that small businesses may be forced to pay following possible coronavirus personal injury lawsuits may drive them out of business. Nonessential businesses, such as dine-in restaurants, will turn to waivers of liability to insulate themselves from COVID-19 related liability: an area known as assumption of risk. This essay argues that in this climate of crisis, and due to the invisible nature of the virus, waivers are an inadequate tool to immunize small nonessential businesses from unwarranted tort liability. Instead of private contracts, limited legislation should address the competing legitimate concerns of both businesses and their customers by laying out mandatory minimum safety guidelines to ensure safety compliance, while insulating businesses who comply with the measures from COVID-19-related ordinary negligence lawsuits. Such legislative intervention, however, should not address the employer-employee relationship.