Best laugh of the day to see the COVID-19 litigation waiver built into the request for tickets to President Trump's upcoming Oklahoma campaign rally. Maybe questions about this will activate a long-delayed and well-deserved conversation about such waivers and their place in American life. We are, in short, waiver happy and the courts, overwhelmingly, have been happy to enforce such waivers. But, are they a good idea? In the era of Covid-19, will we be seeing such waivers at the door to retail establishments, public transportation, even outdoor and/or socially distanced restaurant dining arrangements?
Here's the Bryan Cave law firm with an overview of what might need to be included in a Covid-19 waiver, even offering some draft language for a Covid-19 waiver. If you match the Trump rally waiver with the proposed language, you will note some significant omissions in the former. Big takeaways: such waivers are as yet untested in our courts and will, if and when tested, be interpreted as part of state law.
In light of that, it may be unappreciated genius of a sort to decide to hold this first re-opening campaign rally in Oklahoma. The Oklahoma Supreme Court has a history of recognizing pre-liability waivers or exculpatory clauses. See, e.g., Schmidt v. United States, 1996 OK 29, 912 P.2d 871; Thomas v. Holliday, 1988 OK 116, 764 P.2d 165, 168, fn. 7, 8. But certain conditions must be met and waivers found to be in violation of public policy — including violating public health concerns — may not be enforceable. See, e.g., Linda Wright, 2016 WL 4386038, at *3 Significantly, minors cannot waive such rights and parents may not ratify minor waiver of such rights.Holly Wethington v. Swainson, 155 F. Supp. 3d 1173, 1179 (W.D. Okla. 2015)
This could get interesting. Perhaps no issue so nicely frames our current roiling debate over what we owe each other or do not owe each other in Covid-19 mask wearing, quarantining, and social distancing. What could individual waiver of liability mean if the real purpose of the protections is, overwhelming, to promote public health?