A Question Of Face Masks And Liability

In an earlier entry, I had written about meeting the legal duty of care and planning to re-open your venue as Covid-19 restrictions are relaxed.  It is good to be aware of legal duty of care as a general concept because it exists entirely independent of diseases concerns and is applicable to every aspect of an organization’s operations and decision making.

As plans evolve, there are myriad questions that arise about the types of rules and restrictions you create for attendance. This can be an issue regarding the use of face masks, especially given that people are distributing cards claiming, falsely, that they are exempt from wearing masks under the Americans with Disabilities Act.(ADA)

There are indeed reasons why a face mask might pose a problem for some people. For example, asthma, chronic obstructive pulmonary disease (COPD), cystic fibrosis, and post traumatic stress disorder. However, no one is automatically exempt from wearing a mask. For more information about what the ADA requires and suggested general modifications for serving people who have difficulties wearing masks, the Southeast ADA center has provided a good resource.

Steve Adelman, one of the people who significantly contributed to the Event Safety Alliance Reopening Guide referenced in the legal duty of care post, has put together a series of videos that answer many of the questions arts venues may have, including making face masks mandatory.

This first video has a title referencing “trespass,” but it starts from the question of whether people have a right not to wear face masks and not social distance. The short answer is, just as you can require people to adhere to a dress code, not bring glass bottles to concerts or create a mosh pit, wearing a face mask is another condition of entry among the dozens people with which regularly been asked to comply.

Of course, just because a policy is perfectly legal doesn’t mean the public will accept it without complaint. I have had people tell me they will never attend a performance in my venue because our beer sale agreement doesn’t include the brand they like to drink. Face mask wearing is a much hotter topic than that these days.

YouTube video

In another video, Adelman discusses the concern that you could be sued if someone contracts Covid-19 at your venue. The short answer on this one is, it will be difficult to prove and litigate unless you have been incredibly negligent.

Now presumably if you are concerned about being  sued, you have already resolved to create a safe environment for attendees and shouldn’t have anything to worry about. Adelman takes about 40 minutes to explain all of this so certainly take the time to increase your knowledge about this topic. Again, this is an area that is generally applicable to all organizational operations and there are some instances where it is a lot easier to draw a connection to injury than it might be with Covid-19

In a third video, he talks about waivers of liability. Many organizations are considering having people sign a waiver accepting the risk that they may be exposed to Covid-19 despite the organization’s best efforts to provide a safe environment.

Short answer here is that waivers of liability are rarely enforceable and are usually regarded as providing notice that risks exist. Adelman doesn’t particularly advise having audiences or staff sign one. You may want to talk to your own legal counsel for clarification about whether you should have people sign.

By the way, anything you have written on the back of your ticket stock stating that people waive liability when they use the ticket is also isn’t likely to preempt someone’s ability to sue. You may want to consider removing it so that you can place information that really matters in larger type.

This video is worth the watch. Adelman uses the waiver the Trump campaign employed for their June 2020 rally in Tulsa to show that it probably meets the four prolong test for enforceability, but then he goes on to show how similar waivers weren’t enforced for lawsuits by injured baseball fans.

None of which is to say that you shouldn’t provide any warnings about possible dangers inherent to participating in your events. Acknowledging that there is a definite public relations issue with a lengthy list of warnings, Adelman uses the example of how the reopening announcement Disney parks have posted on their websites does a good job addressing Covid-19 concerns.

Disclaimer: What is a blog post about a legal topic without a disclaimer? This is not legal advice. You should not be getting your legal advice from a blog post. The purpose of this post is to give you things to think about before taking action. Speak to a lawyer about specifics.

Joe Patti
Joe Patti
In addition to writing for ArtHacker, I have been writing the blog, Butts in the Seats (buttsseats.com) since 2004. I am also an evangelist for the effort to Build Public Will For Arts and Culture being helmed by Arts Midwest and the Metropolitan Group. (https://www.creatingconnection.org/about/) I am currently the Theater Manager for the Rialto Theater in Loveland, CO. Across my career I have worked as the Executive Director at The Grand Opera House in Macon, GA, at University of Hawaii-Leeward Community College, University of Central Florida, Asolo Theater, Utah Shakespearean Festival, Appel Farm Arts and Music Center and numerous other places both defunct and funky.
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