Yes, I used the term “magical disclaimers” where I suggested live auctioneers aren’t likely secure from potential (or actual) liability in regard to COVID-19 or other bad behavior. https://mikebrandlyauctioneer.wordpress.com/2020/06/02/and-youre-not-doing-it-online-for-what-reason/.
For one, as I understand, in Virginia, Montana, and Louisiana your “magical disclaimer” is probably void. In many other states, strict standards must be met or your “magical disclaimer” is likely (but possibly not) void.
These particular laws are sometimes in flux (as some laws frequently are.) Here is a complete list by Matthiesen, Wickert & Lehrer, S.C.: https://www.mwl-law.com/wp-content/uploads/2018/05/EXCULPATORY-AGREEMENTS-AND-LIABILITY-WAIVERS-CHART-00214377x9EBBF.pdf as of 08/21/19.
Secondly, your “magical disclaimer” will likely not protect you from your willful and deliberate conduct, reckless or intentional conduct, nor any gross negligence.
Third, your “magical disclaimer” needs to be in clear and unequivocal language, and cannot likely violate state law nor public policy in terms of the wording or particular content.
Further, speaking of public policy … is what the CDC says considered public policy? Is what your governor says considered public policy? Is what your state or local health director says considered public policy?
I’m not entirely opposed to waivers, but if you are attempting to waive your need to be honest, have integrity or fair dealing — or in this case to behave reasonably, you’ve got bigger issues than a need for a waiver.
The Coronavirus (COVID-19) pandemic has brought out a new round of “I’m not responsible” paperwork — which it appears to me for auctioneers is more likely than not, “I might be responsible.”
Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, an Instructor at the National Auctioneers Association’s Designation Academy and America’s Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by the The Supreme Court of Ohio for attorney education.
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