The Legal Brief

By: Alaina N. Crislip, Justin M. Harrison, and Jessica L. Robey

As a result of Governor Justice’s most-recent Executive Order, West Virginia businesses are beginning to reopen. For those of us who have not had a haircut, gone to the gym, or shopped in a retail store since March, this is good news. We can now stop watching YouTube videos on how to cut and dye our own hair. We can also stop fretting over whether we should purchase a Peloton or set up a home gym. This good news, however, does not come without some unprecedented challenges for business owners. 

Understandably, many businesses are considering having their visitors and customers sign waivers to reduce potential liability regarding COVID-19. As explained below, these waivers may not be enforceable in all circumstances. In the absence of specific guidance as to how to safely and properly run a certain business, business owners should continue to put together the best feasible sanitization protocols and document their efforts to show they are providing safe environments to customers.

In West Virginia, liability waivers are generally enforceable and upheld if:

1. the agreement is freely and fairly made between two parties with equal bargaining power; 
2. the customer has expressly and clearly agreed to accept and assume the risk of harm arising from the business’s negligent or reckless conduct;
3. the agreement is not in violation of public policy; and
4. the agreement is not in violation of any applicable safety statute.ⁱ   

A waiver agreement will not be enforced on public policy grounds, however, when a provider of a “public service”, such as a public utility or common carrier, is the alleged wrongdoer.ⁱⁱ The Supreme Court of Appeals of West Virginia has ruled, however, that hazardous recreational or amusement activity businesses do not provide a “public service” as they do not involve “essential services” and therefore, these businesses are permitted to have their customers sign waivers.ⁱⁱⁱ  While some might beg to differ whether gyms, spas, and salons are in fact “essential” to their lives, Governor Justice’s Executive Orders have determined they are not in light of the COVID-19 pandemic. Gyms, spas, salons, and other recreational businesses are therefore permitted to draft waivers for their customers to sign in order to further reduce liability and unnecessary litigation. 

Businesses should keep in mind waivers that release them from injuries caused by their own negligence are strictly construed against them and any language contained therein must be clear and definite before it will shield businesses from liability for their own negligence.^iv  Additionally, in order for an express waiver agreement to be effective, it must appear the customer was advised of the terms of the waiver, understood them, and expressly approved them—particularly where the business, or the business’s attorney, prepared the agreement.^v  

Under West Virginia law, a waiver and release “ordinarily covers only such matters as may fairly be said to have been within the contemplation of the parties” at the time the agreement was signed.^vi  As a result, COVID-19 warnings should be expressly mentioned in the waiver to demonstrate the customer fairly contemplated any COVID-19 related risks before he or she signed the waiver. While many gyms and spas likely already require “waiver agreements” for their customers, these agreements likely pre-date COVID-19 and need updated to ensure customers are aware the waiver releases the business from liability should the customer contract COVID-19. Additionally, many spas, gyms, and salons are having their customers sign, attest, and agree to the following: 

• A temperature check prior to receiving a service; 
• Wearing a mask at all times while inside the business; 
• Keeping a minimum of 6 feet of distance from others; 
• No food or drinks inside the business; 
• No cash, and only using credit, debit, or gift cards; 
• Sanitizing/washing hands after entering the business; and
• Attesting that the customer (or anyone associated with the customer) has not been showing any signs of illness and has not been in contact (in the past two weeks) with someone who was diagnosed with COVID-19. 

Unlike other states, West Virginia law provides that parties can mutually agree to waive liability for the negligent acts of the business, even when the waiver fails to explicitly use the word “negligence” or “negligent acts or omissions”, but instead makes general statements that the business being released is “relieved in effect from all liability for any future loss or damage.”^vii  Moreover, waivers that go so far as to relieve the business from claims resulting from its intentional or reckless misconduct or gross negligence are unenforceable, unless it is clear from the facts and circumstances that the customer intended to release these acts.^viii   

That being said, the enforceability of an express waiver or release for COVID-19 will depend on the type of business and the underlying facts. While liability waivers are generally enforceable in West Virginia, the Supreme Court of Appeals of West Virginia ruled an anticipatory release signed by the plaintiff in Murphy ^ix was invalid. In Murphy, the plaintiff sustained injuries while white water rafting. Prior to embarking on the rafting trip, plaintiff signed an anticipatory release releasing the rafting company from liability for any injuries plaintiff could receive while rafting. The Supreme Court of Appeals of West Virginia ruled this release was in violation of public policy as the West Virginia Legislature had enacted a specific statutory standard of care for commercial whitewater outfitters.  

Not only are businesses revising their waiver agreements or considering having one drafted for further protection, COVID-19 has also caused businesses to review whether they have commercial liability coverage for communicable diseases, such as the coronavirus. It is critical for businesses to review any and all policies of insurance to determine what coverage, if any, is available to address the effects of COVID-19 on businesses, as well as individuals.

Governor Justice has provided reopening guidance for several types of businesses on his website. Once these steps are taken, businesses should consider whether a waiver agreement for their customers is the best option to further protect their businesses from unnecessary litigation and liability. While not all waiver agreements are upheld, they are more apt to be enforced if the requirements discussed above are met.

ⁱ  See Syl. pt. 1, Kyriazis v. University of West Virginia, 192 W.Va. 60, 450 S.E.2d 649 (1994).
ⁱⁱ  See Murphy v. North American River Runners, Inc., 186 W.Va. 310, 412 S.E.2d 504, 509 (1991) n. 6. 
ⁱⁱⁱ  See Tunkl v. Regents of Univ. of California, 60 Cal.2d 92, 383 P.2d 441, 444-46, 32 Cal. Rptr. 33, 36-38 (1963) setting forth six characteristics to look for in order to determine whether a business constitutes a “public service”. 
^iv  Lutz v. Turner Broadcasting System, 187 F.Supp.3d 706 (N.D. W.Va 2016) (citing Krazek v. Mountain River Tours, Inc., 884 F.2d 163, 165 (4th Cir. 1989)).  
^v  See Murphy, 186 W.Va. 310, 412 S.E.2d 504, 509 (1991).  
^vi  Id. at 317, 511.
^vii  Id. at 316—317, 510—511.   
^viii  Id. at 316, 510.
^ix  Id. at 310, 504.