Court Upholds Mandatory Assumption of COVID-19 Risk Form

A Virginia court has issued a ruling that’s welcome news to community associations struggling with how to keep owners happy while reducing the risk of COVID-19. The court found an association’s requirement that users of the common area pool first sign an assumption of risk form reasonable (Norman v. Foxchase Owners Ass’n, Albemarle Cty. Oct. 30, 2020).

Such forms are becoming more common. “We have provided assumption of risk forms for dozens, if not hundreds, of our clients since March,” says Andrew Elmore, a shareholder in the Richmond, Va., office of Chadwick Washington Moriarty Elmore & Bunn P.C., who represents the association involved in the case.

Deborah Casey, a partner in the Norfolk, Va., law firm Vandeventer Black LLP, also has fielded requests from association clients for assumption of risk forms. “We were happy to see this ruling because a lot of associations have implemented these types of procedures. It gives us a good idea of what a court might be thinking about them.”

The Virginia Case

A member of the Foxchase Owners Association sued it over its mandatory form. He argued that requiring owners to sign the form exceeded the association’s authority under its declaration of covenants and restrictions. He also claimed that the association’s requirement infringed on his property right and easement to enjoy common areas.

The form generally requires signers to:

• Identify the children and guests who will be under their supervision at the facility,
• Acknowledge that they understand the contagious nature of COVID-19 and voluntarily assume the risk that they and people under their supervision may be exposed or infected by entering,
• Represent that they have discussed with the people under their supervision the risks and the steps to take to help reduce those risks and the spread of the virus as recommended by the U.S. Centers for Disease Control and Prevention (CDC),
• Represent that they and the people under their supervision won’t enter or use any part of the facility when they have symptoms of COVID-19, have tested positive, or were exposed to someone with the virus within the past 14 days,
• Leave the facility immediately if they or a person under their supervision starts to exhibit symptoms of illness and notify the supervising manager or lifeguard on duty, and
• Agree that they will practice safe social distancing and clean hygiene, as recommended by the state and the CDC.

The court found that all these requirements regulate conduct, as permitted by the governing documents — they don’t, the court said, otherwise limit someone’s rights.

While an association can educate people and post signs, as the owner urged as an alternative to the form, the court recognized that people “don’t read them.” To illustrate, the court gave the example of posting signs in the courtroom instructing people not bring in cell phones, stating that phones aren’t allowed, that phones will be taken, or people with phones will be held in contempt of court.

Even if such signs are right by the door, the court said, people will disregard them. When someone has to actually initial and sign a form, it found, the impact is “much greater and much more direct.” A mandatory form commands the signer’s attention, if only for a moment, in a way a posted sign doesn’t.

“By having people do more than just be exposed to a sign — by getting them to sign the form — you put them and everyone around them in a safer position,” Elmore says.

The court also highlighted several other practical considerations. For example, the pandemic presents a unique and unprecedented safety challenge and the use of common area facilities could lead to transmission.

Ultimately, it concluded, restricting use of common area facilities to those who sign the assumption risk form is reasonable.

Lessons for Your Clients

“The court embraced the necessary balance of understanding that owners have rights, but there are limitations,” Elmore says. “If restrictions are founded on authority in the governing documents and imposed reasonably, they’re enforceable.

“You’re not being denied the use of something — you’re just being required to take one more step. If the association had done nothing by way of rule or regulation, it would be derelict in its duty. It has to protect the safety of owners and the association from liability exposure.”

So what types of provisions should your clients consider including in their COVID 19-related assumption of risk forms?

“It’s important for the signer to acknowledge that there’s no guarantee and that they’re taking risks in using the facility,” Casey says.

“The form should require the owner to acknowledge that COVID-19 presents a unique and heightened risk to their health and safety and that the association can’t guarantee someone using the facility won’t contract COVID,” Elmore says.

Casey also advises associations to delineate exactly which facilities or property the form covers. “Here, it applied only to an amenity. If it had applied to other common areas, such as those that provide access to units, it might not have been upheld by the court.”

Finally, Elmore cautions against including a waiver of negligence claims. “In Virginia, and probably around the nation, an association can’t require an owner to waive such claims.” Your clients should consult with a local association attorney to ensure they don’t run afoul of similar legal restrictions.