That legal duty has high-powered firms debating whether the sheer existence of new a virus itself qualifies as "advance knowledge" and whether, in light of that, there is any way to protect their clients from liability.
For promoters and venues, temperature checks and intensive disinfecting cleaning could be a way of demonstrating high safety protocols were followed. Warnings, public disclosures of risk factors and signed waivers could be used to demonstrate that the attendees were aware of the risk but attended regardless. And any lawsuit would require an attendee to trace back and demonstrate that they contracted the new virus from a patient zero or from another factor at the event.
Yet, even with all those barriers and safety measures, James Sammataro, co-chair of Pryor and Cashman's media and entertainment departments, says it would likely not be enough to prevent a lawsuit.
"I think there can be some pretty good defenses, but I don't think there are solid enough defenses to prevent a lawsuit," says Sammataro, whose firm has formed a multi-disciplinary team to help clients navigate the myriad of COVID-19 issues. "And then I think it all depends on what court do you enter into and what's the court's disposition as to whether or not it's a valid claim."
Sammataro points out that many concert and sporting events already come with disclaimer liability waivers printed on the backs of tickets, but that does not prevent fans from filing legal action regarding injuries sustained. In addition, Low says, because concerts by their nature typically involve "a lot of people in a small area yelling and screaming and getting excited, then you are going to have a lot of human exhaust," making them an even greater risk.
Deciding whether to move forward with a concert or live performance in light of current circumstances is a challenging question, says Laura Foggan, an insurance attorney at Crowell & Morning in Washington D.C. and part of the firm's multidisciplinary group tasked with assessing all COVID-19 client concerns. Organizers need to be mindful that any decision made will be looked at with "20/20 hindsight," she says, "perhaps a little more critically than in the context when decisions are being made in the first sense."