Q: “I am concerned about the prospect of re-opening my business under these circumstances, in particular, as it pertains to potential liability from customers for any health-related issues. Are waivers of liability enforceable under these circumstances, and, if so, should I ask my customers to sign them?”
May 6, 2020
Illinois permits parties to contract away liability for their negligence. As such, waivers and releases of liability are legal and enforceable in Illinois. However, because exculpatory clauses exempting liability for negligence are generally disfavored, they are strictly construed against the party they benefit. This means that for a waiver to be enforceable, the language should be clear, explicit, and straightforward as to its scope and effect. That said, there are “special relationships” that make exculpatory clauses unenforceable, such as between an employer and employee or between a rider and a common carrier (i.e., a train or bus).
One thing to consider is that even if you can utilize a waiver or release, before interacting with a customer, whether it is in your best interest to do so. What message is being sent to the customer? Does requesting a waiver of liability make the customer more concerned about his or her health and safety such that it will hurt your business. And if you do demand a waiver, do you, at the same time, set forth in writing all the things the company is doing to ensure the safety of its customers? It’s a tricky question.