Timothy Liam EPSTEIN'S Article Entitled, "Providing Masks to Fans Entering Sports Facilities Could Raise Liability Issues" was published in Sports Facilities and the Law.

      Professional sports leagues who were forced to halt their seasons due to COVID-19 are slowly announcing when play will resume.  Moreover, leagues that have been forced to delay the start of their seasons are currently considering options of how their respective seasons will proceed.  Although these leagues will resume play at some point, fans will likely need to wait even longer before observing sporting events in-person.

      When fans are eventually allowed to enter stadiums again, it will not be business as usual.  Specifically, limited admission, social distancing practices, and facial mask requirements likely will be implemented within these stadiums.  Of these practices, requiring fans to wear masks will pose a difficult challenge as fans will either not have their own mask or will not wear the masks correctly for the entirety of the game.  Regarding the former, stadium owners and teams (collectively “owners”) may elect to provide masks for fans who do not have their own.  Although this proactive approach mitigates the risk of spreading COVID-19, owners may be exposing themselves to liability.

      The Centers for Disease Control and Prevention (“CDC”) has recommended that all people wear cloth face coverings in public settings where other social distancing measures are difficult to maintain.  Although owners can implement procedures to make social distancing possible, the activities that occur within a sports stadium certainly make social distancing a challenge.  Accordingly, the CDC’s recommendation likely applies to patrons in sports arenas.  Certainly, owners have the ability to provide disposable masks, but the optics of the excess waste created by such masks as well as the ongoing demand for proper disposable masks to be provided to healthcare workers and first responders may push owners to the CDC-recommended cloth face coverings.  Additionally, cloth face coverings provide sponsor opportunities to help subsidize the cost.

      The CDC has established what these facial coverings should include.  These are as follows: (1) fit snugly, but comfortably, against the side of the face; (2) are secured with ties or ear loops; (3) include multiple layers of fabric; (4) allow for breathing without restriction; and (5) are able to be laundered and machine dried without damage or change to its shape.  This list of features appears to be manageable for an individual, however, if stadiums intend to distribute masks for all fans who do not have their own, it will be both a difficult and costly task to provide masks that incorporate all the aforementioned characteristics for each mask.

      One difficulty will be the ability to provide masks that fit correctly for each and every fan. If the only mask distributed is one of average size, fans that fall out of this range will be given a mask that is either too loose or restrictive.  In both scenarios, fans will be provided, and subsequently wear, masks that are not within the guidelines of the CDC.  Owners can mitigate this risk by distributing a wide variety of sizes, but this will come at an increase of cost, and only mitigate, and not completely eliminate the risk of improperly fitting masks.

      Another consideration is whether or not fans will keep the masks after the game.  Owners may prefer to retain all masks after each sporting event, launder them, and redistribute them at the next game.  This will reduce the costs associated with purchasing masks, however, this comes with an increased risk of redistributing masks that may not be completely free of the virus.  While what we currently understand of COVID-19 is that surface transmission is not a primary source of virus spread, the possibility remains that an owner may unknowingly increase fans’ exposure to COVID-19 by redistributing used masks that were not properly laundered. 

      If these or any related situations result in a fan contracting COVID-19, in theory, owners could be found liable under a premises liability theory.  Although states vary as to when and how a property owner can be found negligent under this theory, there are three general elements that must be established for a fan to succeed on a negligence claim under premises liability: (1) the owner must owe a duty of care to the fan; (2) the owner or agent of the owner breached that duty of care to the fan; and (3) the breach of duty of care caused the injury to the fan. 

Generally, jurisdictions hold property owners to the highest standard for duty of care when the guest brings financial benefit to the property owner.  Therefore, owners owe a duty to the fans to take reasonable steps to protect and/or prevent fans from foreseeable injuries.  The only exception to this rule is the “limited duty rule.”  This rule requires baseball, hockey, and some other owners to provide a reasonable amount of protective seating and netting to protect fans from projectiles leaving the field of play.  Benejam v. Detroit Tigers, Inc., 246 Mich. App. 645, 654 (2001).  However, because this limited duty only applies for protection regarding projectiles, all sports stadiums may be subject to providing a reasonable standard of care to mitigate the risk of fans contracting COVID-19 absent any new legislation to the contrary.

Although establishing a duty may not come with significant challenge, the other two elements may pose an issue for fans alleging they contracted COVID-19 at a sporting event due to the stadium’s distribution of inferior masks.  First, fans will need establish that the masks distributed breached the owner’s duty of care.  Here, evidence that the masks distributed did not meet the standard established by the CDC’s guidelines may satisfy this element.  Specifically, distributing improperly fitting masks (disposable or not) or masks that have not been effectively laundered (if re-used by owners) are two of many potential factors that can establish this element.

Nonetheless, the causation element will undoubtedly be most difficult to establish.  This strict causation element is known as proximate cause.  By its definition, proximate cause is some direct relation between the injury asserted and the injurious conduct alleged.  Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 269 (1992).  As COVID-19 cases continues to grow, the places in which an individual can contract the virus are increasing as well.  Therefore, not only will fans need to establish that infection took place at the stadium, but they will also need to show that they were infected because they were given faulty, defected, or contaminated masks.  Accordingly, every public interaction a fan has shortly before and after attending the sporting event continually decreases the possibility that the virus was contracted at the stadium. 

Owners will likely raise a variety of defenses to a negligence claim brought by a fan.  One example is that the stadium exercised reasonable care with mask distribution.  Here, owners can contend that it would be unreasonable to provide the perfect mask for thousands of fans.  Thus, the fact that the owner provided protection that the fan would otherwise not have may support the finding that the owner exercised reasonable care, and thus, did not breach their duty of care. 

Another example is the concept of assumed liability.  Here, owners would need to establish that the fan actively knew the risk associated with attending a large group gathering and voluntarily assumed this risk.  Given that these risks are arguably common knowledge with constant governmental action, the fan voluntarily purchasing a ticket and subsequently entering the stadium may make this defense viable. 

One final defense that owners may use is waiver.  Many fans are unaware that the reverse side of a ticket stub usually contains a liability waiver.  By accepting and/or using the ticket, fans are releasing the stadium owner and teams from liability resulting from negligence.  Nonetheless, some jurisdictions have found such waivers unenforceable due to fans not reading the waiver.  See Yates v. Chicago Nat’l League Ball Club, Inc., 230 Ill. App. 3d 472, 487 (1st Dist. 1992).  To avoid any enforceability issues, owners may take a proactive approach and require fans to sign a short waiver to receive a mask and/or enter the stadium. 

Although there are a variety of defenses owners can raise if litigation arises, state and federal lawmakers have enacted or have introduced legislation that would make these defenses unnecessary.  This legislation would provide businesses and organizations with immunity from COVID-19 lawsuits.  Although professional sports leagues have not yet obtained this immunity, it has been gaining traction at the state and federal level.

Regardless of these potential defenses and the difficulty fans may have in establishing negligence, owners will be exposing themselves to liability when they decide to allow spectators inside their stadiums.  Consequently, these owners likely will engage in lengthy and comprehensive planning to limit this liability.  Of this planning, the resulting mask policies will be pertinent in establishing a safe environment for fans that will also limit future litigation for owners.

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