Lawyer: Proving liability for getting COVID-19 a challenge

Posted 6/26/20

An event attended by President Donald Trump Tuesday, June 23 was met with criticism when it came to people not wearing masks while inside a Phoenix church.

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Lawyer: Proving liability for getting COVID-19 a challenge


An event attended by President Donald Trump Tuesday, June 23 was met with criticism when it came to people not wearing masks while inside a Phoenix church.

The Students For Trump Convention at Dream City Church drew around 3,000 people. Most were maskless. However, Arizona Gov. Doug Ducey and Sen. Martha McSally (R-AZ) were among those sporting face coverings.

But in the event someone contracted COVID-19 there, their chances of recovering damages will be a challenge, according to a Valley lawyer.

Prior to the event, organizer Turning Point Action posted a disclaimer on its registration page that read, “By clicking register below, you are acknowledging that an inherent risk of exposure to COVID-19 exists in any public place where people are present. By attending this convention, you and any guest voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Turning Point Action, their affiliates, Dream City Church, employees, agents, contractors, or volunteers liable for any illness or injury.”

But as Arizona sets daily record highs for new COVID-19 cases — multiple days with over 3,000 new cases in the last 10 days — is the website’s waiver enforceable?

“From my perspective, no,” Marc Lamber, chairman of the personal injury practice group at Fennemore Craig, told the Daily Independent. “If someone were to say they contracted coronavirus at that event and they brought a claim, it would get tested by a court.”

Mr. Lamber said some of the key elements of a valid liability waiver in Arizona are whether the release is clear, unambiguous and unequivocal. Does someone clearly express their intent to bargain away the right to hold a party responsible for negligence? Does the release make clear the claim you’re giving up — usually a negligence claim or a premises liability claim. Does it speak to the specificity of risk that people are going to wind up not pursuing? Does it alert the party who’s agreeing to sign it that they’re giving up a very substantial right relative to the specific type of risk? Also, is it against public policy?

In laying that groundwork, Mr. Lamber doesn’t see the organizer’s waiver as valid.

“From my standpoint, the liability waiver that was used for that event — the factors that I mentioned — it didn’t meet those. It’s too general. It didn’t speak to releasing anyone from a negligence claim.”

But while courts in Arizona view liability releases or waivers unfavorably, Mr. Lamber said, challenging them in court won’t be easy as plaintiffs have to prove the defendant was negligent in their actions.

“In order to prove negligence, you have to prove someone owed you a duty, they breached that duty, and that breach of the duty caused you to sustain damages,” Mr. Lamber said. “If you were to argue at any event or any business that you contracted the coronavirus, you would have to demonstrate that they did something wrong. You would have to prove that whatever that breach of that duty, it wound up causing you — versus all of the other potential causes — to contract COVID-19.

“And to me that’s the most significant challenge. You’ve got a disease that’s very contagious, very widespread, has a long incubation period, and people who are asymptomatic and/or pre-symptomatic can give it to you. So how do you prove that at a particular business that you frequented or patronized, that you got coronavirus there versus the gas station where you got gas in the morning or the restaurant you had dinner at two days before, or from one of the children in your family or teenagers in your family that got together with other families or other kids. Or at the gym. It becomes very challenging.”

He added it may be easier in a situation where a business or event had multiple confirmed cases. But people still have to prove causation — as well as damages, like medical bills, lost time from work or physical injury.

Mr. Lamber contrasted the situation to that of a vehicle collision.

“If someone hits your car, and you’re injured as a consequence, you break a bone, we know that someone hit you,” he said. “They had a duty not to hit you and you broke a bone. So you’re injured, and you know that injury occurred in that event. It wasn’t from some other event.

“Here, we have a virus that’s invisible, and because of all the factors — it’s widespread, it’s so contagious, there’s so many possible causes — I think there won’t be as many lawsuits because of that.”

Safety claims backfire

Dream City itself tried to take measures to ensure a safe, healthy environment for those attending. The church contracted Howard Air to install CleanAir EXP’s air purification units. According to a release, those units clean indoor air and surfaces of viruses, allergens, pathogens, odors, smoke, mold, ozone and harmful chemicals. Initially, church pastors had touted the tools could eliminate 99.9% of COVID-19, but they later backtracked and admitted they used coronavirus and COVID interchangeably.

“Our statement regarding the CleanAir EXP units used the word COVID when we should have said Coronavirus or COVID surrogates,” a release stated. “We hope to alleviate any confusion we may have caused.”

Dream City has been directing questions about the system to CleanAir EXP executives. Church officials stated it is their understanding that the company “tested with a third-party Certified Biosafety Laboratory on the best coronavirus surrogates available.”

“The company found that their technology leads to a 99.9% elimination of airborne coronavirus surrogates,” according to a release. “So while they do not eliminate COVID-19, their coronavirus surrogate testing results are significant for the future of clean air.”

However, those moves were not enough to keep state authorities from stepping in. On Friday, June 26, Arizona Attorney Mark Brnovich announced his office issued cease-and-desist letters to CleanAir EXP and Dream City Church.

The Attorney General’s Office alleges that CleanAir EXP has advertised and continues to advertise that its air filtration products neutralize 99.9% of viruses that are “COVID-19 surrogates.” Also, previous representations made by CleanAir EXP under the heading “COVID-19 REPORT” on the company’s website suggested that its filtration systems would neutralize 99.9% of “coronavirus,” according to a release. However, officials claim that was based on testing of coronavirus 229E, a virus which causes the common cold.

The letter states that these representations imply that CleanAir EXP’s products can prevent COVID-19 transmission and infection. However, the AG’s Office says it is not aware of any scientific research or public health authority certifying any kind of air treatment product as a means of preventing COVID-19 infections.

“Businesses cannot mislead consumers with their advertising, especially when it comes to health issues as serious as COVID-19,” Mr. Brnovich stated. “We will not tolerate companies or individuals attempting to deceive or exploit the public during this public health crisis.”

In a response to the letter, CleanAir EXP stated they are committed to developing and providing advanced air and surface purification systems for homes and businesses.

“No air purification system, including ours, can universally prevent coronavirus (including COVID-19) infections,” according to a statement from CleanAir EXP. “On June 23, we updated our website to further emphasize the coronavirus surrogates used in our laboratory testing and made all lab reports available. We encourage following hygiene guidelines in the manner ordered or suggested by government authorities.”

The attorney general’s letter to Dream City tackled the church’s claims that the filtration system “kills 99 percent of COVID within 10 minutes” and that “when you come into [the church’s] auditorium, 99 percent of COVID is gone. So you can know when you come down here, you’ll be safe and protected.”

Because Dream City rents its facility for public events not related to church functions, the AG’s Office placed the church on notice that misrepresentations and false promises related to the safety of church facilities may violate the Arizona Consumer Fraud Act.

The Daily Independent has reached out to Dream City Church regarding the attorney general's letter.

Ducey on rallies

At a press conference Thursday, June 25, Arizona Gov. Doug Ducey defended indoor political rallies with thousands of people without masks even as he admitted the only way the state will stop the upward trend of infections is if people mask up and stay home.

“People’s rights to assemble are not going to be infringed,” Mr. Ducey said when asked about his attendance at Tuesday’s rally.

He also brushed aside questions about how requiring people to wear masks — which is now the law in most of the state — interferes with their right to assemble.

“It’s in the First Amendment,” he said.

Mr. Ducey also defended the travel plans by both Mr. Trump and Mr. Pence.

“The president and vice president have a job,” he said. “I have a job. We’re not going to get in the way of the job that they have to do.”

Mr. Ducey is expected to attend two events next week with Vice President Mike Pence — one in Yuma to discuss Arizona’s response to COVID-19 and the other in Tucson as part of Mr. Pence’s “Faith in America” tour.

Capitol Media Services reporter Howard Fischer contributed to this report.

Editor's Note: Mike Pence will not be visiting Tucson next week, according to reports Saturday, June 27.