As quarantine ends in parts of the country, sports fans are looking for a sense of normalcy, including having the opportunity to cheer their teams from the stands. Recently, several news reports have outlined how some organizations and venues plan to accommodate sports fans in the era of COVID-19. Those plans include limiting the number of available seats, hiring hygiene specialists, or planning intricate procedures to exit and enter the venue. It is imperative that venues and sports teams enact procedures to mitigate legal liability in the event an outbreak occurs at one of their events.
Common law states that a landowner owes certain duties which vary on the status of the entrant.[1] Generally, spectators at sports venues are considered invitees. Venue operators owe specific duties to invitees.[2] Operators have duties to reasonably inspect their premises and maintain the premises in order to render them safe.[3] Operators also have duties to warn invitees of any risks that the venue can reasonably anticipate or which are not known or obvious.[4]
A plaintiff that contracts COVID-19 may claim they were infected while at a venue and the venue is liable for their illness. There have been lawsuits against organizations and facilities for failing to maintain safe and sanitary conditions.[5] In the event of such claims, a plaintiff will face significant legal challenges.
First, a plaintiff must demonstrate infection took place at the venue. This type of causation can be difficult to prove during a pandemic.[6] Second, venues may be able to assert that fans assumed the risk of COVID-19 contraction by attending a sporting event[7] at a venue. Indeed, venue operators and teams might argue that transmission of a virus is an open and obvious risk of attending an event in public during a pandemic.[8] Spectators may argue, however, that contraction of COVID-19 at a sports venue is not an inherent risk of attending the event.[9] Moreover, some states have abolished aspects of the assumption of risk doctrine.[10] Yet, as we note below, due to the current level of awareness surrounding the pandemic, fans would have a difficult argument against assumption of risk.
Based on current guidelines issued by the White House and the Centers for Disease Control and Prevention (CDC), there are numerous recommended procedures a team can do to minimize the risk of a COVID-19 outbreak and a subsequent lawsuit. Current CDC social distancing guidelines suggest individuals stay at least six feet apart, and avoid congregating in groups. Other guidelines include using approved disinfectants to clean surfaces and objects, or to barricade areas where spectators might want to congregate (e.g., home run roof decks).
In addition, venues should consider:
(i) Reducing the number of fans that can attend an event
(ii) Removing seats within sections to ensure that social distancing is maximized
(iii) Modifying online sales platforms with the goal of clustering seats together for families but spacing out groups from one another and individual ticket holders
(iv) Limiting opportunities to obtain concessions
(v) Creating a strategy to minimize interactions near restrooms
(vi) Using approved disinfectants in the venue
(vii) Posting warning signs throughout the venue, including discouraging handshakes or high fives
(viii) Providing hand sanitizer and no-contact hand-washing basins around the venue
In addition to maximizing social distancing, venues should encourage contactless transactions between fans and vendors. The removal of cash from a venue will limit the hand-to-hand exposure of the virus that occurs when cash is exchanged. Several venues, including Tropicana Field, and
Mercedes Benz Stadium, are 100% cashless venues. Stadiums should also consider upgrading all credit card readers to make them “tap-to-pay” and digital wallet accessible.
Moreover, venues can enact their own additional policies, such as determining whether to deny entry to visibly ill spectators, screening fans for symptoms (and temperature checks), and deciding whether fans should be required to wear face coverings when they are unable to enforce safe social distancing. In order to expedite security screenings, venues should mandate fans bring personal items in clear plastic bags for inspection. Finally, venues should consider procedures designed to protect their employees and third-party vendors. For example, venues should install sneeze guards or protective barriers at concessions.
Venues should review their insurance policies for any applicable exclusions for claims that might be asserted by invitees. Commercial general liability (CGL) policies typically provide coverage for bodily injury claims asserted by invitees on the premises, but some CGL policies contain communicable disease exclusions. Venues should also speak with their insurance professionals about whether they have adequate policy limits in light of the potential for transmission within the stadium and the continued need to protect against the ordinary exposures such as slip and falls.
Finally, teams and venues should consider including a disclaimer or liability waiver on their tickets and posting the disclaimer at all entry points. The disclaimer would state that fans assume a risk of contracting COVID-19 by attending events or games where the virus may be disseminated. Any disclaimer or waiver should be clear and concise and also set forth the steps the team and/or venue has taken to mitigate exposure of COVID-19 to the fans. Due to the level of awareness of the ability of COVID-19 to spread, it would be difficult for fans to argue that they were unaware of the risks associated with attending a large-gathering event and the potential for exposure to COVID-19.
Similar to the “Baseball Rule” established in Crane v. Kansas City Baseball & Exhibition Co., where fans assume the risk of getting hit by a foul ball by attending a baseball game, so long as teams and venues “exercise reasonable care, i.e., care commensurate to the circumstances of the situation…”[11] they may be able to shield themselves from liability from fans exposed to or infected with COVID-19.
The legal standard for minimizing risk for a COVID-19 outbreak is to inspect the venue, keep fans safe from known and obvious risks, and warn fans about other known risks. By implementing reasonable measures, venues and fans can return to some level of normalcy to cheer on their home team.
[1] Cham v. ECI Mgmt. Corp., 836 S.E.2d 555, 558 (Ga. Ct. App. 2019) (duty of care varies according to the legal status of the person entering the premises); Klein v. Quinnipiac Univ., 219 A.3d 911, 917 (Conn. Ct. App. 2019) (“[t]he status of an entrant on another's land . . . determines the duty that is owed to the entrant while he or she is on a landowner's property.”).
[2] South Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903, 910 (Ind. 2014); Webber v. Speed Channel, Inc., 472 F. Supp. 2d 752, 757 (E.D. Va. 2007); Yates v. Chicago Nat. League Ball Club, Inc., 595 N.E.2d 570, 578 (Ill. Ct. App. 1992); Daniels v. Atlanta Nat'l League Baseball Club, Inc., 524 S.E.2d 801, 803 (Ga. Ct. App. 1999).
[3] Teixiera v. New Britain Baseball Club, Inc., No. HHBCV95994214S, 2006 WL 2413839, 2 (Conn. Super. Ct. July 18, 2006); Armstrong v. Lakes Golf and Country Club, Inc., 98 N.E.3d 328, 334 (Oh. Ct. App. 2018); Allred v. Capital. Area Soccer League, Inc., 669 S.E.2d 777, 779 (N.C. Ct. App. 2008).
[4] Armstrong, 98 N.E.3d at 336 (finding no liability for open and obvious risk); Webber, 472 F. Supp. 2d at 756 (“an owner is not an insurer of the invitee’s safety, and thus notice is not required when the dangerous condition is ‘open and obvious’ to a person who is exercising reasonable care for his own safety.”); Auito v. Clarkston Creek Golf Club, Inc., No. 240621, 2004 WL 1254193, 5 (Mich. Ct. App. June 8, 2004); Boll v. Chicago Park Dist., 620 N.E.2d 1082, 1086–87 (Ill. Ct. App. 1991); Hanson v. Christensen, 145 N.W.2d 868, 872 (Minn. 1966).
[5] See generally Tynes v. Buccaneers Ltd. P’Ship, 134 F. Supp. 3d 1351 (M.D. Fla. 2015) (NFL player alleged injury from MRSA at team’s training facility); Russell v. Call/D, LLC, 122 A.3d 860 (D.C. 2015) (allegations of legionnaires disease in sewer system).
[6] Howard v. Spradlin, 562 S.W.3d 281, 287 (Ky. Ct. App. 2018) (causation is the “direct, distinct, and identifiable nexus” between the plaintiff’s damages and defendant’s breach of duty); Burnette v. Eubanks, 425 P.3d 343, 350 (Kan. 2018) (plaintiff must prove cause-and-effect between defendant’s conduct and their damages); George v. Estate of Baker, 724 N.W.2d 1, 6–7 (Minn. 2006).
[7] Hurst v. East Coast Hockey League, Inc., 637 S.E.2d 560, 562 (S.C. 2006); Pickel v. Springfield Stallions, Inc., 926 N.E.2d 877, 890 (Ill. Ct. App. 2010); Pellham v. Let’s Go Tubing, Inc., 398 P.3d 1205, 1215 (Wash. Ct. App. 2017) (fallen tree in river was assumed risk while tubing); Kennedy v. Providence Hockey Club, Inc., 376 A.2d 329, 332 (R.I. 1977) (assumption of risk means voluntary); Gallagher v. Cleveland Browns Football Co., Inc., 638 N.E.2d 1082, 1088 (Ohio Ct. App. 1994) (“Primary assumption of risk bars recovery by a plaintiff for injuries sustained during a sporting event because the plaintiff is a willing participant or spectator.”).
[8] Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891, 895 (Ky. 2013) (discussing land owners not liable who are injured by open and obvious dangers); Bundschu v. Naffah, 768 N.E.2d 1215, 1219 (Ohio Ct. App. 2002) (“Open and obvious dangers are those dangers that are either known by the plaintiff or are so apparent that the plaintiff would reasonably be expect to discover and protect against.”).
[9] Pickel, 926 N.E.2d at 889–90 (assumption of risk is not applicable to collisions between players and spectators because it is not commonplace or an inherent activity in arena football); Nemarnik v. Los Angeles Kings Hockey Club, L.P., 127 Cal. Rptr. 2d, 10, 18 (L.A. Kings Hockey Club did not owe a duty to eliminate the inherent risk of injury from flying pucks).
[10] Shain v. Racine Raiders Football, Club, Inc., 726 N.W.2d 346, 352 (Wis. Ct. App. 2006).
[11] Crane v. Kansas City Baseball & Exhibition Co., 153 S.W. 1076, 1077 (Mo. Ct. App. 1913) (citing King v. Ringling, 130 S.W. 482, 485 (Mo. Ct. App. 1910); see also Anderson v. Kansas City Baseball Club, 231 S.W.2d 170, 173 (Mo. 1950) (it would be absurd to inform each patron of potential fouled balls in unscreened areas).
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