Understandably, we have received several inquiries regarding re-opening facilities; from schools to rodeo events. 

The Governor continues to hold the line on re-opening pending further progress on testing and on the reduction in COVID-19 incidents and deaths. A declaration by the Governor is equal to state law. Any re-opening authorization likely will be gradual. Members can view this as an opportunity to:

• develop plans for a safe re-opening
• prepare to manage the re-opening process
• avoid a subsequent shut down due to reoccurrence of infections

Members have a duty to assure safe operations at public facilities. Employees must be protected in accordance with OSHA requirements including PPE such as masks, hand sanitizers, sanitizing procedures, and similar required precautions. Similar protections are required for members of the public utilizing public facilities. Clear physical distancing standards, limiting occupancy concentration, hand washing/sanitizing stations, disinfection protocols, face coverings, gloves and similar precautions are advisable for any facility or program.

Based upon substantial evidence from pandemic disease specialists, it is entirely possible that the current situation may be part of a series of waves of increasing and waning virus infections over the next year or more. Careful consideration of the long-term precautions due to this potential should be made.

Important considerations regarding sanctioning and permitting events at Member venues include: 

• Ensure both the public facility owner and each vendor/operator is able to and will comply with state directives in place at the time of the event to lessen the potential for liability.  Vendor use permits/contracts should be carefully reviewed.
• Failing to do so, could expose the public facility owner to litigation by members of the public, under various theories of liability.
• If the public facility owner does not establish sufficient requirements consistent with CDC Guidelines and state directives, risk of litigation rises.
• If a member allows an event to occur in violation of State directives in place at the time, such an action could increase the likelihood of injury/illness and provide a basis for litigation, thus the situation requires extraordinary caution and consideration.

Questions arise about whether liability coverage would apply for these situations. There are complications in responding about coverage because each claim/suit is fact specific and the coverage analysis considers those facts to determine how coverage may or may not apply. It is important to note that there is an exclusion for intentional acts that may preclude coverage depending upon the actions taken by the Member and the allegations of the suit. Ordinary negligence claims may remain within coverage if the exclusion for intentional acts does not apply. However, it would be advisable to remain in alignment with the Governor’s State directives at the time of the event to reduce liability risks and to avoid creating a trigger of the intentional act exclusion.

We at POOL/PACT know that your highest concern is protecting the health and safety of the public you serve, your employees, and volunteers.   It is also an essential part of defending against liability claims.  We are standing by ready to assist you in any way we can.  Please do not hesitate to contact your agent for any additional questions you may have as well.  

RELATED DOCUMENTS:

CDC Prepare for Reopening Events

CDC Reopening Events FAQ