Waiver – OK For Colleges, Maybe Not For Trump; Colleges Can Use Waivers to Open This Fall Without Immunity
Waivers Can Provide An Excellent Shields From Legal Liability
WASHINGTON, D.C. (June 15, 2020) - Although some legal experts have suggested that the waiver those attending Trump rallies are being asked to click may not protect the President and others from liability, such waivers or releases - if properly drawn and executed - can and have provided excellent shields from legal liability in many situations, notes public interest law professor John Banzhaf.
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He adds that because waivers seem to be tailor made for college students who insist upon instruction this fall in classrooms rather than remotely, despite the clear and largely unavoidable risk of infection by the coronavirus despite reasonable protections, colleges should use such releases where appropriate, and therefore do not need the grant of legal immunity they are seeking from Congress.
But here's why the Trump release may be something else, suggests Banzhaf.
The Trump Waiver Is Poorly Lawyered
Law professor David Noll of Rutgers concludes that the Trump waiver is "poorly lawyered" and would not be enforceable because it is not specific enough. Professor Adam Zimmerman, who teaches law at Loyola, argues that the Trump waiver is not specific about the claim which is being relinquished.
Going even further in his own criticism, law professor Daniel Hemel of the University of Chicago concludes that the Trump campaign "seems to have opted for the worst of both worlds: It wrote a waiver that's less than waterproof but still offensive enough to attract bad press."
Banzhaf adds three additional possible problems with the Trump waiver.
First, although it says that "by attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold [Trump and various entities] liable for any illness or injury," it's not at all clear that the person checking the box can legally waive liability, and assume risks, on behalf of his guests, especially if the guests are not aware of the alleged waiver.
Second, a plaintiff could argue that he signed the agreement only because he incorrectly assumed, based upon many misleading statements made by the President himself, that the risks were minimal; a claim which could defeat the effectiveness of the agreement.
Third, the click link purports to waive "liable for any illness or injury," regardless of how it may be caused. But the law regarding waivers, which varies from jurisdiction to jurisdiction, generally prohibits any purported waiver of liability for gross negligence, much less for intentional acts.
So, for example, says Banzhaf, if staff at the event suddenly and unexpectedly herded many of the attendees much closer together than they expected or intended, such conduct might constitute gross negligence which would not be covered by any waiver. And if a staffer for any reason pushed an attendee, that would constitute an intentional tort for which liability cannot generally be waived.
But any problems which might prevent this specific Trump document from being legally effective could easily be cured by more careful drafting and other simple steps which colleges could take regarding students who insist upon receiving instruction in classrooms rather than on-line as they did late in the spring term.
The Inherent Risks Of Infection
Even if on-line instruction is not as enjoyable, or is even less effective than interacting with a professor in a classroom, the latter - even if masks and social distancing is employed - has inherent risks of infection which simply cannot be avoided.
This is especially true since it has been proven that even a brief exposure indoors can spread the infection at least 14 feet, a single sneeze can project germs some 200 feet away, that the virus can linger in the air rather than immediately falling to the ground or onto a surface, and that persons both in front of as well as behind a carrier can become infected more than 6 feet away even with a high quality ventilation system which is often not present in classrooms.
So, as with other activities which likewise involve inherent and unavoidable risks - such as skiing, rock climbing, white-water rafting, riding an electric scooter, etc. - it's perfectly fair and reasonable, and much more importantly legal - for the participants to be asked to voluntarily agree to assume the risks, and not sue the operator if an injury does occur. Such waivers have generally been upheld.
Making Waivers Effective
As a professor who teaches students how to sue companies, and how to get around routine waivers, releases, and other assumptions of risk, Banzhaf suggests that colleges and universities take a few simple steps to help insure that their waivers, under which students accept the infection risk of in-classroom instruction, will be effective and hold up in court if necessary.
First, colleges should be sure that those signing the releases are fully aware of the different risks and the magnitude of such risks; perhaps by requiring them to first read warnings and analysis of the dangers from appropriate governmental bodies, major independent and highly reputable scientific and medical organizations, etc.
Second, they should be sure that it is very clear to signers exactly what legal rights they are giving up in return for being permitted to return to a classroom. Having the signers check specific boxes, circle portions of the release document, provide clear warnings in large boldface letters, use precise language such as "Give Up The Right to Sue," etc. would help to insure that.
Third, to avoid what lawyers call "contracts of adhesion" where one side may have little choice but to sign, colleges should make it clear in the document that students who do not wish to assume the risk of infection, in return for being able to attend classroom sessions, can take the courses on line and completely avoid the risk.
It probably would be useful to give students that option regarding each class, suggests Banzhaf, since the desire for in-person instruction might be much more pressing for certain classes such labs and artistic instruction than for others such as introductory causes taught by a single professor lecturing to hundreds of students.
Having Parents Co-Sign The Waiver
Finally, although probably not legally required for students 18 or over, colleges may still wish to be sure that parents or guardians are on board with the waiver, especially for undergraduates, by having them co-sign the document, or at least acknowledge via return email that they have read the waiver their son or daughter has signed, etc.
Since no one can plausibly claim that there are no risks of coronavirus infection from returning this fall to classroom instruction, a key issue is whether those risks should be borne by the college or by the students who insist upon classroom instruction.
A carefully drafted waiver form for each class selected by a student should help to make that choice - and allocation of risk - clear, suggests Banzhaf.