Robbins: Can you sue if you get sick? |

Robbins: Can you sue if you get sick?

A couple of days agon, someone asked me, “If the government opens things back up again and I get sick, can I sue them?”

The next day, a client sent me a release to review, the nut of which was a proposed waiver and release of liability she meant to hand out to her employees, everybody entering into her premises, and anybody coming into contact with her staff.  What she was asking was, “If someone gets sick, can I get sued and, if so, can I protect myself?”

It’s complicated.

How a waiver works

First, what is a waiver? No, it is not a friendly Walmart greeter, although, indeed, Walmart greeters are known to be vigorous wavers. Neither is a waiver a guy or gal standing in the roundabout with a sandwich board on election day. Instead, at law, a waiver is the voluntary relinquishment of a known right. If I am detained by law enforcement and, after being advised of my right to remain silent, I determine, instead to blabber, I have waived my Fifth Amendment right against self-incrimination. 

Waiver may also occur in business settings. Say, for example, I enter into a contract. Generally, if a contract sours, I have the right to pursue my remedies in court. But by private agreement with the other contracting party, I bite on his suggestion that, if we get sideways with one another, instead of traipsing into court, we will submit our dispute to binding arbitration. In so doing, I have waived my right to trial and have committed myself, instead, to arbitrate the matter. Let me emphasize that to be held against me a waiver must be both voluntary and knowing.

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In the context of my client’s question, what she wanted to know is that if she was sued over someone getting sick with COVID-19, would a signed waiver offer her a shield against potential liability?

Giving up some right

While it is a release to get out on my bike in the fresh air — particularly in these cooped up days — what a “release” is legally is a contractual agreement by which one assents to relinquish a claim or right under the law to another person against whom such a claim or right would be otherwise enforceable. I release my right to sue you which, except for the release, I otherwise would have.

For purposes of this discussion, the distinction between a waiver and release isn’t worth the fine legal hairs to be split. Suffice it to say, that with waiver or release — or both tied up with a pretty bow — what you, the waivor or releasor, would be agreeing to is give up some right. In this case, the right to sue if you got sick.

Broadly speaking, waivers and releases are enforceable in Colorado. But hold that thought a sec.

To the first question, could you sue the government? Well, you could but almost certainly not successfully. You see, there is this little matter of the Governmental Immunity Act.

Under the act, the government (or sovereign) is special. “Sovereign immunity” is a concept that holds that the ruler (in this case the government) is immune from certain liabilities to which the rest of us are held. Sovereign immunity is the doctrine that precludes a potential litigant from asserting an otherwise meritorious claim against the sovereign or at least limiting the claim.   

Colorado and most other jurisdictions permit, by statute, certain tort actions to proceed against the government. However, certain restrictions, limitations and strictly held requirements apply. A “tort” claim is, in its essence, a civil (as opposed to criminal) claim seeking redress for an injury (generally to either property or persons). 

While the act recognizes that there must be compensation for certain wrongs committed by the government, the amount which may be awarded for those wrongs, and the types of wrongs for which compensation is available, are limited. Abbreviating madly, the sorts of claims that are allowed are those where it can clear the bar of proof that the government acted recklessly in acting how it did. In regard to “reopening” the state or a municipality for business, this could be read as proving that the government had “no reasonable basis” for doing what it did.

With the prospect of a zillion businesses cratering like the Broncos in Super Bowl XLVIII, good luck with that.

Although I think the chances are greater that one could sue a private business, the Medusa’s head of “causality” would surely hiss and fuss.  There would also be the matters of “breach of duty” and “acceptance of a known hazard”.

In order to prevail in tort, the claimant must prove three things: existence of a legal duty to the party injured; breach of that duty; and damage to the injured party resulting directly from (or as natural consequence of — or “causally” from) the breach. In short, with the COVID-19 virus dance on the head of every pin out there in the great wide shutdown word, how would you ever prove a causal relationship to the injury? I got sick here, not there.

Acceptance of a known hazard is exactly what it sounds like. I know, for example, if I scramble up a high dive, there is some inherent risk. If I hurt myself — commensurate with the known risks of diving from ahigh — well, I, after all, accepted that. Only if someone did something wrong (oops, we forgot to attach the diving board to the tower) am I likely to prevail. 

When you waltz into the newly opened-back-up world, knowing that this scourge has been stalking with its sharpened scythe, wouldn’t it occur to you if you were a reasonable, thinking person, that this is not the world we left behind? And if not exactly scrambling up a high dive, some risk is almost certainly presumed.

As to breach of duty, if I, as a store or other business owner, have swabbed down every inch with disinfectant, kept people 6 feet apart with magic hula hoops, insisted on Darth Vader-like rebreathers, taken temperatures, and done every other last thing I have been advised to do, breach of a duty would be sort of a steep hill to climb.

Should your business ask for waivers and releases?

As our president might offer, well, “It couldn’t hurt.”

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