* Hayley Weisman
Before COVID-19 (COVID), artists in the live music industry toured the country, bringing arenas full of people together to have one common experience of seeing them perform.[1] Since March, the live music industry has hit a standstill, with many events getting postponed or canceled as a result of the COVID pandemic.[2] Many changes have been made to the regulations for public safety since COVID was first declared a pandemic—e.g., the need to wear a mask when out in public and restrictions on the number of people allowed at group gatherings.[3] As an industry that is almost entirely centered around bringing large groups of people together, how should the live music industry reopen amidst COVID without risking massive outbreaks and lawsuits?
I. Liability a Venue Might Face When Reopening
Venues within the live music industry have taken various approaches to reopening.[4] Regardless of the precautions a venue might take when reopening, there is no clear way to avoid litigation should an outbreak occur as a result of the gathering.[5] Reopening may subject venues to a variety of legal actions (i.e., allegations of negligence lawsuit) if an attendee contracts COVID after attending an event.[6] Theoretically, a venue could be liable for negligence if an attendee can prove they contracted COVID at a particular venue and that the venue’s actions were the proximate cause of their injury.[7] Additionally, a venue could theoretically face liability for failing to warn attendees before they attend an event that there is a possibility of contracting COVID.[8]
II. Actions Venues Can Take to Lessen Their Liability
While there is currently no clear way to avoid liability altogether, there are possible steps that venues can take to attempt to lessen their liability.[9] One way venues can lower their chance of being held liable is by following the guidelines provided by the Centers for Disease Control and Prevention (CDC) and local governments for the best ways to mitigate the risk of exposure in public settings.[10] The CDC created a list of guidelines venues can follow to help reduce the spread of COVID and mitigate the inherent risks of reopening.[11] In addition to the CDC’s guidelines, many states are slowly allowing different establishments to open at various capacities based on their type of business.[12] Some states (i.e., Tennessee and Mississippi) have allowed venues to reopen with a reduced capacity, while other states (i.e., Maine and Virginia) have required that all concert venues remain closed.[13] By following the guidelines provided by the CDC and local governments, venues can demonstrate a willingness to make reasonable attempts to reduce the risk of an outbreak.[14] Moreover, it will help limit their liability should an outbreak actually occur.[15] But merely following these guidelines will not completely erase the liability a venue might face under those circumstances.[16]
Another option for venues seeking to limit liability is to add a waiver to ticket purchases, stating that by attending the event, customers are assuming any possible risks there might be in attending.[17] Signing a waiver would show an attendee was aware there was a risk of contracting COVID when entering the venue, and that they knowingly decided to attend despite that risk.[18] Even with a waiver, venues must still follow the guidelines set out by their respective states and the CDC on the best ways to mitigate the risk of exposure.[19] Some of those guidelines include limiting the number of people allowed inside, requiring everyone in attendance to wear a mask, and frequently cleaning and disinfecting the venue.[20] Many venues already use waivers for standard liability disclosures, but attendees still bring legal actions for injuries that occur during an event.[21] Since waivers do not entirely prevent people from bringing suit, an attendee who contracts COVID can still bring legal action against the venue, even with a signed waiver.[22]
III. Other Ways That the Liability of Venues Can Be Affected.
In addition to possible lawsuits by event attendees, venues also face the possibility of lawsuits from employees who contract COVID while at work.[23] If an employee were to contract COVID at work, they could either make a workers’ compensation claim or bring an action for negligence.[24] In some states, employees are entitled to bring a workers’ compensation claim, but the majority of states have not currently expanded their workers’ compensation coverage to include COVID work-related illness.[25] Currently, employees bringing a negligence action would have to prove the same elements as event attendees to succeed.[26] However, a proposal introduced before Congress would allow legal protections from COVID lawsuits for businesses making reasonable efforts to comply with government standards to protect their workers and customers.[27] Under the proposal, employees would have to prove gross negligence (i.e., lack of care or reckless disregard of a legal duty) or willful (i.e., intentional) misconduct on the part of the venue rather than simply showing that they contracted COVID.[28] Legal protections for employers would allow venues to reopen without as big a fear of facing suits from employees who happen to contract COVID while at work.[29]
While following the guidelines set by local governments and the CDC and having attendees sign waivers before attending an event are possible ways of mitigating a venue’s liability upon reopening, those actions are not absolute protections.[30] Another option for venues trying to reopen and significantly mitigate the risks associated with COVID is to host drive-in events.[31] Under this format, a venue would still be able to host events while significantly reducing the likelihood of contact between people and the risk of an outbreak.[32] As live music venues reopen, there is almost no way to avoid that risk and potential liability, but there are a variety of actions venues can take to overcome those challenges.[33]
* Hayley Weisman is a second-year law student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review. She is also a member of the Jessup International Law Moot Court Team. This past summer, Hayley worked as a legal intern at the Law Offices of Thomas M. Donnelly, LLC.
[1] See Samantha Hissong & Ethan Millman, ‘Everything is in Chaos’: The Concert Business Stands to Lose Billions from Coronavirus, Rolling Stone (Mar. 11, 2020, 2:25 PM), https://www.rollingstone.com/pro/features/live-music-concerts-coronavirus-risks-losses-965482/.
[2] See All the Live Events, Movie Releases, and Productions Affected by the Coronavirus, Vulture, https://www.vulture.com/2020/08/events-cancelled-coronavirus.html (Sept. 17, 2020).
[3] See Ella Torres, How Life Has Changed Since Coronavirus Struck, ABC News (Apr. 10, 2020, 5:58 PM), https://abcnews.go.com/Health/10-ways-life-changed-coronavirus-struck
/story?id=69535464.
[4] See Claudia Rosenbaum, Concert Venues are Reopening Across America. Could Lawsuits Follow?, Billboard (June 16, 2020), https://www.billboard.com/articles/business/tour
ing/9403602/concert-venues-reopening-america-lawsuits-liability.
[5] See id.
[6] See id.
[7] Id.
[8] Claudia Rosenbaum, The Show Must Go On? Concert Promoters Weigh Liability While Debating Coronavirus Cancellations, Billboard (Mar. 12, 2020), https://www.billboard.
com/articles/business/legal-and-management/9334198/concert-promoters-liability-coronavirus-cancellations.
[9] See Rosenbaum, supra note 4.
[10] Id.
[11] Considerations for Events and Gatherings, Ctrs. for Disease Control & Prevention (July 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/cons
iderations-for-events-gatherings.html.
[12] See Where States Reopened and Cases Spiked After the U.S. Shutdown, Wash. Post, https://www.washingtonpost.com/graphics/2020/national/states-reopening-coronavirus-m
ap/ (Sept. 11, 2020, 5:43 PM).
[13] See id.
[14] See Rosenbaum, supra note 4.
[15] See id.
[16] See id.
[17] Id.
[18] Rosenbaum, supra note 8.
[19] See Rosenbaum, supra note 4.
[20] See Considerations for Events, supra note 11.
[21] See Rosenbaum, supra note 8.
[22] See id.
[23] See Rosenbaum, supra note 4.
[24] See id.
[25] See Josh Cunningham, COVID-19: Worker’ Compensation, Nat’ l Conf. of State Legis. (Aug. 28, 2020), https://www.ncsl.org/research/labor-and-employment/covid-19-workers-compensation.aspx.
[26] See Rosenbaum, supra note 4.
[27] See Ana Swanson & Alan Rappeport, Liability Shield Is a Stumbling Block as Lawmakers Debate Relief, N.Y. Times (Aug. 5, 2020), https://www.nytimes.com/2020/08/05/us/politic
s/liability-shield-business-coronavirus.html.
[28] See id.; NEGLIGENCE, Black’s Law Dictionary (11th ed. 2019); MISCONDUCT, Black’s Law Dictionary (11th ed. 2019).
[29] See Swanson & Rappeport, supra note 27.
[30] See Rosenbaum, supra note 8.
[31] See John Paul Titlow, How Live Music Is Coping, and What the Near Future Will Bring, NPR (Aug. 13, 2020, 6:00 AM), https://www.npr.org/2020/08/13/901796934/how-live-music-is-coping-and-what-the-near-future-will-bring.
[32] Id.
[33] See Rosenbaum, supra note 8.
University of Baltimore Law Review 