Preparing for COVID-19 On Paper

Enrollment-form recommendations to protect your camp

By Gregg Scharaga

We can all agree—COVID-19 is unprecedented. And the types of lawsuits that have been filed in response to the pandemic have been as unique as the pandemic itself. Lawsuits for wrongful death and bodily injuries, based upon failure to warn and negligence theories, are expected to multiply rapidly. To better prepare, it is recommended that camps include a COVID-19 waiver section for enrollment agreements. These can be presented as part of the initial camper-enrollment agreement or as a separate waiver agreement. 

Photo: © Can Stock Photo / AndreyPopov

A COVID-19 liability waiver may take many forms, but essentially the signer acknowledges the risk of contracting the virus at camp and releases the camp from any and all liability. This is a tough call—to require parents to sign a waiver against holding a camp responsible for their child testing positive for COVID-19. However, erring on the side of caution is highly recommended.

Holding Up In Court

While the risks associated with the pandemic are widely known, a camp should not assume that parents signing waivers are aware of those risks or how a particular camp’s activities relate to increases in risk. COVID-19 waivers are becoming more common, and all signs suggest this trend will continue. Something to keep in mind though—these are not guaranteed to be enforceable; the courts have yet to rule on them with any uniformity. Even in states that are open to enforcing waivers, there is no guarantee a COVID-19 waiver will be enforced.

Waivers may be unenforceable based on public-policy reasons. Many courts are hesitant to enforce waivers that seek to waive the rights of children. Given the highly contagious and deadly nature of the coronavirus, it is difficult to believe that courts in some jurisdictions will treat COVID-19 waivers any differently from personal-injury waivers. However, it is better to have a waiver in the enrollment agreement, if nothing else than for informational purposes, similar to a warning about assuming the risk of personal injuries. In states that enforce liability waivers, many do so only if the waivers meet certain criteria:

(1)    The language is clear.

(2)    The terms are identifiable, conspicuous, and easily understandable.

(3)    There is a clear statement of inherent risks.

(4)    It is signed and agreed to by a parent.

(5)    The terms do not violate law or public policy.

Waivers that comply with these general principles may help protect a camp from significant liability risks associated with COVID-19. Even if a waiver is unenforceable, it may bolster an argument that the person knew of and assumed the risk of COVID-19-related injuries—another possible defense against claims.

Photo: © Can Stock Photo / JackF

The Argument

Potential lawsuit legal theories include premises liability, negligence, and failure to warn. But individuals or groups asserting personal-injury claims as a result of COVID-19 face a basic problem: Coronavirus is a biological pathogen, not man-made. People can carry the virus and transmit it, but is that alone a basis for liability? A suspicion that an infection occurred at a camp, without more, may be insufficient to support a claim. This is true both because of the nature of transmission (person to person) and the unfortunate prevalence of the disease in the U.S. Known facts about the disease also contribute to the difficulty of proving causation. COVID-19 can be transmitted by asymptomatic carriers, and symptoms may develop anywhere from two to 14 days after exposure. All of these factors make a forensic investigation almost impossible. The overwhelming number of cases has also caused the contact-tracing system to break down.

What may become significant are large numbers of confirmed cases associated with one location—such as a camp. Being a sleepaway camp prepared to be in a theoretical “bubble” might be worse off in these scenarios if there is a leak in the bubble. When large numbers of individuals in one location during a common time period become infected with COVID-19, litigation becomes more likely.

Spelling It Out

COVID-19 clauses can be as simple or as sophisticated as one wants. Camps can include language that is obvious to everyone around the world about COVID-19 (if it helps one sleep better at night), or one can just rely upon the important waiver language. This is a personal preference that camps will make in consultation with a lawyer, camp representatives, and insurers. A binding-arbitration clause can even be added where, if there is any dispute, contractual or otherwise that comes out of this clause, the parents agree the dispute must be resolved by binding arbitration—by an arbitrator and location of one’s choosing—to avoid the issue being litigated in court. Of course, nothing prevents parents from commencing a lawsuit, but a camp can raise the binding-arbitration clause as a defense to argue the case should be dismissed because the court lacks jurisdiction over the issue—and it must be by the arbitrator designated in the contract.

Camps should be prepared in the event a waiver is deemed unenforceable; however, having parents sign a liability waiver is highly recommended. The goal is to establish they were aware of and willingly accepted those risks on behalf of their children. Of course, a camp must do its part to hold up its end of the bargain by implementing best safety practices and procedures for preventing transmission of the virus, strictly adhere to them, and follow the latest guidelines issued by the CDC, state, and local government.

Gregg S. Scharaga is an attorney at Chartwell Law in White Plains, N.Y. Reach him at (914) 421-7777, or gscharaga@chartwelllaw.com.