ABA has had a number of members reach out looking for guidance on language they can insert into contracts to help relieve them from some of the liability regarding COVID-19 on trips. The following suggested guidance comes from ABA's general counsel.
COVID-19 WAIVER OF LIABILITY
In most jurisdictions across the United States, courts will enforce liability waivers that insulate a party from liability arising out of that party’s negligent conduct. The only states that have so far refused to enforce a liability waiver clause in a contract are Connecticut, Montana and Virginia.
To be enforceable, liability waivers should specify that the customer acknowledges the risk assumed in using the service as well as the rights they intend to waive.
The language below is intended to be a starting point for tour and bus companies to use in deciding on how to protect yourselves from limitation related to the COVID-19 pandemic. ABA does not offer any legal advice on whether your company should have a limitation of liability in your contracts, the scope of any such limitation, or how such a limitation should be worded. You should consult appropriate legal counsel whenever you are developing contractual terms. This liability waiver sample language is for informational and educational purposes only. It is not intended to be comprehensive, nor does it constitute legal advice.
WAIVER of LIABILITY.--The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is reported to be contagious. The state of medical knowledge is evolving, but the virus is believed to spread from person-to-person contact and possibley by contact with contaminated surfaces and objects or in the air. People reportedly can be infected and show no symptoms and therefore spread the disease. The exact methods of spread and contraction are unknown, and there is no known treatment, cure, or vaccine for COVID-19. Evidence has shown that COVID-19 can cause serious and potentially life threatening illness and even death.
[Company] cannot prevent you [or your child(ren)] from becoming exposed to, contracting, or spreading COVID-19 while utilizing [company]’s services or premises. It is not possible to prevent against the presence of the disease. Therefore, if you choose to utilize [company]’s services and/or enter onto [company]’s premises you may be exposing yourself to and/or increasing your risk of contracting or spreading COVID-19.
ASSUMPTION OF RISK.-- I have read and understood the above warning concerning COVID-19. I hereby choose to accept the risk of contracting COVID-19 for myself and/or my children in order to utilize [company]’s services and enter [company]’s premises. These services are of such value to me [and/or to my children,] that I accept the risk of being exposed to, contracting, and/or spreading COVID-19 in order to utilize [company]’s services and premises in person
WAIVER OF LAWSUIT/LIABILITY.-- I hereby forever release and waive my right to bring suit against [company] and its owners, officers, directors, managers, officials, trustees, agents, employees, or other representatives in connection with exposure, infection, and/or spread of COVID-19 related to utilizing [company]’s services and premises. I understand that this waiver means I give up my right to bring any claims including for personal injuries, death, disease or property losses, or any other loss, including but not limited to claims of negligence and give up any claim I may have to seek damages, whether known or unknown, foreseen or unforeseen.
This language could be signed by the chartering party and the by passengers taking the tour or riding on the bus. As with all contract language, you should consult your attorney.