And there it is, just like that.  Attended the rally for President Trump in Tulsa?  Then, you were required to agree to the following COVID-19 release.  

By clicking register below, you are acknowledging that an inherent risk of exposure to COVID-19 exists in any public place where people are present. By attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Donald J. Trump for President, Inc.; BOK Center; ASM Global; or any of their affiliates, directors, officers, employees, agents, contractors, or volunteers liable for any illness or injury.

Wanted to practice collegiate-level athletics over the summer at Southern Methodist University in Dallas? Then you had to sign (or, if you are under 18 years old, have your guardian sign) the following COVID-19 release.

(I) hereby waive and release SMU, its employees, trustees, officers and agents from and against any claims… of any nature whatsoever, whether known or unknown, for any injury, loss, or damage, due to contracting the COVID-19 virus.

The list of organizations and companies requiring members, visitors and volunteers sign releases related to COVID-19 goes on and on and on.  But are those releases legal?  Enforceable?

1.    What is a release of liability?

Generally, a release of liability is when one party gives up the right to assert claims or causes of action against another person. Many times, releases contain language such as “waive”, “release”, and “assume all risks”.  Sometimes, releases make mention of specific claims, like negligence or gross negligence.  Other times, releases mention specific types of damages that are to be released, such as actual or consequential damages, or damages resulting from bodily injury or death.

2.    Are releases of liability enforceable?

Are releases of future liability enforceable in Texas?  Yes, no, and maybe.  

The Texas Supreme Court loves and has long recognized parties’ broad freedom to contract.  A release is a contract subject to avoidance just like any other contract.  And depending on how they are written and whether they do offend public policy, Texas courts have enforced releases and held that they can serve as an absolute bar, extinguishing a claim or cause of action.

3.    What are the standards for enforcing a release?

Texas courts will interpret a contract against the party who drafted it.  With releases, Texas courts impose two additional requirements.  First, a release will be strictly construed against the party who wrote it or the party seeking to be released, typically one and the same.  For instance, it is highly unlikely that a college athlete wrote and signed the contract releasing his college from liability for COVID-19.  Almost certainly, the college wrote it.  A Texas court would strictly interpret the contract against the college.  

Second, the release must meet the so-called “fair notice” requirements.  These requirements were initially developed for indemnity provisions, a form of an exculpatory agreement.  A contract seeking to release a party from COVID-19 liability would qualify as such an exculpatory contract. 

There are two “fair notice” requirements: the express negligence rule and conspicuousness. Under the express negligence rule, the intent of the party releasing the claim must be clear, unambiguous and within the four corners of the contract.  The intent of the express negligence rule is to prevent parties from using loosely phrased language that might be misunderstood by the other party to the contract.  

Conspicuousness means the clause must be presented in a manner that a reasonable person ought to have notice of the clause.  Many times, Texas courts look to whether the cause is in bold font, larger font, or somehow set apart from the remainder of the contract.  Actual knowledge of the clause, sometimes evidenced by initialing or signing next to the clause, may fulfill the conspicuousness requirement. 

4.    What are the legal limitations on enforcing releases?

Like every contract, a release must be supported by something of value, consideration if contained in a freestanding agreement.  If a club member who has paid her annual dues and already been given full privileges to the club is later asked to sign a COVID-19 release without anything of value given, the release may be unsupported by consideration and, therefore, unenforceable. 

Other limitations include that persons under the age of 18 years old may not release their claims.  Releases that violate Texas’s public policy are also unenforceable.  For example, the Texas Supreme Court has held that releases from tort or contract liability for harm caused intentionally or recklessly is unenforceable for violating public policy.  

Gross negligence presents a more difficult call.  While some Texas courts have also held a party’s gross negligence cannot be released because it violates public policy, others have held that negligence and gross negligence are not separable claims and, therefore, a release of liability for negligence also releases a party from liability for gross negligence. 

COVID-19 releases are bound to be subject to legal challenges in court. One question that will likely arise is whether the person seeking to be released has “recklessly” exposed others to the virus by failing to adhere to the minimum CDC guidelines or state guidance documents or whatever standards of care may exist for a given industry.  Is it reckless to hold an event and not require attendees to wear facemasks when current CDC guidance recommends wearing them?  Is allowing contact within 6 feet reckless?  The issuance of COVID-19 releases is only the first chapter in what will be a long book.  

 

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