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Editor's Note: Elie Honig, CNN legal analyst and former federal and state prosecutor, gives her thoughts on the latest legal news. The opinions expressed in this comment are yours. See more opinions on CNNe.com/opinion
(CNN) - It's the ultimate Disney experience: covid-19 disclaimers for everyone! The novel coronavirus "is an extremely contagious disease that can lead to serious illness and death", Disney, while ensuring that they have adopted "improved health and safety measures" now warns potential customers: "When visiting Walt Disney World Resort , you voluntarily assume all risks related to exposure ”. A gradual reopening of the shopping and dining area at Disney World is planned on May 20, which will continue on May 27.
Disney will hardly be alone in issuing such a warning and advising customers who take the risk of entering. It's time to get used to seeing this type of legal jargon frequently in your life, as companies reopen across the country and try to find ways to protect themselves against potential lawsuits from customers who could contract the new coronavirus on their property. .
Whether you knew it or not, this is not so new. As a consumer, you give up your legal rights, or just give them away, all the time. If you've ever joined a gym, gone skiing, or taken an indoor climbing class, you've almost certainly signed a waiver stating that you know the activity is dangerous and that you won't sue if you get hurt. Those “permits” that you sign for a child's minor league team or a field trip are often just another form of disclaimer. In today's litigious world, you will find that exemptions are common not only for dangerous physical activity, but also for mundane activities, especially for anyone who may involve children.
Even if you don't physically sign anything, you sometimes accept an exemption simply for your actions. If you have the ticket from the last time you attended a professional sporting event or concert (or when you get yours the next time any of us can go to one), turn it around and read the fine print about what rights are given. just walking out the door - "risk taking," in legal jargon.
It can be particularly nasty to sign a covid-19 waiver before going through the front door of Disney. Put your name here to give Mickey your right to sue! But this trend toward disclaimers for the covid-19 will become a common and reasonable strategy for companies that walk the tightrope between reopening to the public and protecting against potential lawsuits. We are just at the beginning of what promises to be years of litigation over this disease. Covid-19-related personal injury lawsuits have already been filed against companies and governments across Europe, and a major US legal publication is warning companies to "prepare for personal injury litigation in the covid-19 era."
The law has so far been untested and will evolve. As people start filing cases, and those cases go through court, look for the key questions that come up: Do these exemptions work? Can companies really isolate themselves from lawsuits and do people actually give up their rights to sue when they sign a waiver?
There is not a single answer. Laws differ from state to state and results will vary according to the particular facts of the dispute. But certain general principles and key questions arise. Most, but not all, states enforce exemptions, preventing a person from filing a lawsuit, at least in some circumstances. States vary in the deference they grant to exemptions, and some courts overturn exemptions that are deemed too unequal against the consumer or against the broader public interest. Courts sometimes, but not always, require that exemptions be clearly written and understandable, and fairly negotiated between the parties. So when you see one of those small print exemptions overflowing with legal jargon and wondering if it would really stay in court, the answer is that it depends a lot on which state you are in.
Even when exemptions are enforceable, they generally only go so far. They generally protect a business only through negligence, that is, by not using reasonable care, but not by more serious conduct, including gross negligence, recklessness, or intentional acts.
Of course, this raises another set of fundamental questions. What is "reasonable care" and how will judges and juries apply that general legal concept to the real world as it is now shaped by this pandemic? How far must companies go to protect themselves against infection and spread? Is it enough to warn? How serious should the warning be? Is it enough to require masks, disinfect every night or perform temperature controls? And if customers get sick, can they prove they got the virus from or from a particular business?
It is impossible to know the answers right now, but rest assured that the demands will come, and the questions will be asked, and the Americans will demand that they be answered. Expect companies across the country to follow Disney's efforts to insulate itself from possible liability for covid-19. Such exemptions are likely to be here to stay.
Disney
