Getting a pedicure at my local nail salon has become a law school hypothetical.

To celebrate the end of my tenure as homeschool teacher, I treated myself to a pedicure at my favorite local nail salon. Yes, save parties, concerts, and other large gatherings, we are wide open for business here in Texas.

As I was perusing the bottles of nail polish, sipping on my free glass of box white wine, trying to decide if I really wanted to wear a shade called “Getting Nadi On My Honeymoon” (I did), the nail technician thrust a form into my hand and said “you have to sign this first.”

“COVID-19 Liability Waiver”

Nothing kills a lawyer’s buzz faster than having to read something legal. Because yes folks, I can’t just sign something.

The ins and outs of liability waivers

We sign them all the time. Joining a gym. Signing a kid up for soccer. Going to a trampoline park. But most of us never read them.

A liability waiver is a contract where you acknowledge that you have been informed of the risks of a particular activity and waive your right to sue or recover damages the business owner if you get injured or hurt.

In a COVID-19 waiver, you would be acknowledging that there is a risk you could be exposed you could be exposed to COVID-19, and you waive your right to sue or recover damages from the business if you do get sick.

Are COVID 19 liability waivers enforceable?

No one knows.

We are in uncharted territory here folks. There’s no precedent. Apparently Model-T dealerships didn’t require potential buyers to sign one of these during the Spanish Flu pandemic. And not a single one has been litigated yet.

But you can bet they will.

Here’s what I can tell you about the enforceability of liability waivers generally. Courts are loathe to enforce them, and when they do, they require waivers to be both express, conspicuous and not against public policy.

“Express” means it clearly states that the person signing the waiver intends to and does in fact release another party from any claims of negligence. “Conspicuous” means the waiver language is eye-catching, like a different type size, all caps, and/or bold. In other words, you can’t miss it.

No need to worry about your teenager signing a waiver. You have to be 18 for it to be enforceable.

Additionally, some jurisdictions, such as Texas, will not enforce a waiver of liability against anyone for damages that arise from intentional misconduct or gross negligence.

No shirt, no shoes, no waiver, no service

Can you refuse to sign a COVID-19 liability waiver?

Sure, but the business you are trying to enter can refuse to let you in.

While I understand why a business would want to try and protect itself with a liability waiver, as a consumer, I find them off-putting. Maybe it’s the lawyer in me, but I can’t help but wondering if it means they are not being as careful (e.g., cleaning heavy use areas) as they should be. Frankly, if there is another business close by not requiring a waiver, I tend to take my business elsewhere.

Again, I can’t just sign something and would rather use my contract analysis skills for my paying clients.

So did I sign the nail salon waiver?

You bet I did. For one thing, thanks to a 75 day running streak, my feet are in pretty sorry shape and I really needed that pedicure. Also, I’ve been a customer of the salon for 12 years and know they run a clean business.

Finally, that darn thing was written so badly there’s no way a court would enforce it.

Sometimes it helps to be a lawyer.

What about you? Have you encountered COVID-19 liability waivers? Do they make you more suspicious of a business’ cleaning practices? Or do you just sign them and move one?

For more on my insights into liability waivers, be sure to read What you need to know now about liability waivers and releasesTop 5 Legal Issues You Need to Take Care of Now Before School is Out for the SummerDo I Need a Liability Waiver for My Kid’s Carpool?Aint’ No Cure for the Summertime Blues-Four Legal Issues You Need to Tackle Now, and Signing Your Rights Away at the Indoor Playground-Liability Waiver and Release.

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