The summer of Covid-19 liability waivers: will courts enforce them in North Carolina?

Probably not, and there’s good reason for it. If you visit the dentist, if you get your haircut, or if you venture to a pool this summer, then you will likely be asked to sign away your right to sue if exposure leads to infection of Covid-19. For example, the waiver required to register for Donald Trump’s campaign rally in Tulsa made national news, reading as follows:

“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.” 

Some states are more friendly to liability waivers than others. In North Carolina, though, contracts “exempting persons from liability for negligence are not favored by the law and are strictly construed against the party claiming such exemption." Jordan v. Eastern Transit & Storage Co., 266 N.C. 156, 161, 146 S.E.2d 43, 48 (1966). As such, a clause will not be construed as exculpatory "in the absence of explicit language clearly indicating that such was the intent of the parties." Hill v. Carolina Freight Carriers Corp., 235 N.C. 705, 710, 71 S.E.2d 133, 137 (1952) See also, Alt. Const. & Material Co., v. Adcock, 161 N.C. App. 273, 588 S.E.2d 36 (2003) (holding that unclear and/or ambiguous language is not sufficient to support the defendant’s absolution from liability in reliance on an exculpatory clause of contract).  

Moreover, even if an exculpatory clause is otherwise valid, courts retain the authority to strike it when the clause “violates a statute, is gained through an inequality of bargaining power, or is contrary to a substantial public interest.” Fortson v. McClellan, 131 N.C. App. 635, 508 S.E.2d 549 (1998). In Fortson, the North Carolina Court of Appeals declined to enforce a liability release absolving the defendants from the duty to use reasonable care because the interest of public safety outweighed free market principles that would have otherwise bound the parties to contract. Id. The plaintiff in that case signed a waiver in order for the defendant to instruct her on how to safely operate a motorcycle; she suffered personal injury when the motorcycle the defendant assigned her malfunctioned. Id. After brining her lawsuit, the defendant relied upon the exculpatory clause in their contract as a liability shield, but the Court of Appeals refused to enforce it, explaining that “given the hazards to the public associated with motorcycle instruction, and the extensive regulation of motorcycle use, it would violate public policy to allow instructors...to absolve themselves from the duty to use reasonable care.” Id. at 559.

North Carolina courts might extend that logic to Covid-19 liability waivers because the health and safety of the entire public, not just the signatories to the contract, demands that businesses use reasonable care to mitigate the risk that patrons spread the disease to the general public. Simply, the risk is too great to the entire public for a business to abrogate its duty to use reasonable care and that interest supersedes the competing freedom of contract policy. A negligence claim would therefore likely fall on its merits in North Carolina, setting the stage for a broader debate on what protective measures align with the level of care a reasonable, prudent person would take in the same situation.