Can Restaurants Disclaim Liability for Customers’ Exposure to COVID-19?

As New York continues on into Phase Four of its reopening, many restaurant owners are faced with the prospect of liability if a customer claims to have contracted COVID-19 while dining on their premises. The potential claims put restaurant owners who have struggled with business closures for months in an even more difficult situation; do they open their doors and risk a potential lawsuit from a sick customer or stay closed and face continued loss of profits? What, if anything, can be done to disclaim or mitigate this situation?

In answer to this question, restaurant (and other business) owners have considered the utility and implementation of liability waivers. Liability waivers generally cannot protect from gross negligence or willful misconduct but may provide protection from negligence claims. Some states, such as Virginia, disallow liability waivers entirely, but New York provides for the enforceability of liability waivers if certain conditions are met. In New York, a liability waiver is enforceable if: (i) it is not void as against public policy (i.e. does not violate the public interest); (ii) the intention of the parties is expressed in unambiguous, unmistakable language; and (iii) the provisions of the waiver are clear and coherent. See, Gross v. Sweet, 400 N.E.2d 306, 309 (N.Y. 1979). If restaurants choose to use liability waivers, they should: (i) clearly state the potential risks of COVID-19 exposure even after careful preventative measures are taken; (ii) expressly state that the customer fully understands and is willing to assume such risks; and (iii) have the customer expressly agree to release the restaurant from any claims in connection with COVID-19. Restaurants must pay particular attention to presenting waivers to minors, as courts generally consider minors incompetent to enter a valid contract. Additionally, it is important that a restaurant follow the safety measures identified in its waiver to prevent liability arising from the restaurant’s failure to follow its own policies.

Though the use of liability waivers has been routine in some scenarios, it is unclear whether a COVID-19 waiver relieving a restaurant of liability for exposure claims would be enforceable in New York. This is due in large part to the unprecedented nature of COVID-19, the rapidly evolving information about the virus, and the lack of a vaccine. As always, we advise you to speak to an attorney if you have questions about how prospective liability waivers as well as any COVID-19 related development impacts your business.