COVID-19 FORESEEABLE?? WAIVABLE?? IT AIN’T GOING AWAY

COVID-19 has dramatically affected every aspect of our lives since mid-March, though it appeared in January and February. Nothing can be done to turn the clock and the calendar back, so as to make this pandemic not have attacked the world, or at least to have minimized its deadly effect that continues.

But, consider whether or not COVID-19, more precisely a viral pandemic of whatever variety was foreseeable? By foreseeable, I mean both in the factual (could we or should we have known that a pandemic would strike) or the legal context. A brief definition of legal foreseeability would be an event such that a person of ordinary prudence would expect a global pandemic with devastating death, illness and economic destruction.

Well, let’s consider the films that discuss, contemplate and/or predict this very catastrophe. Here is a (less than complete) list of films that predict what we are enduring right now:

– Virus (1980) (Japanese)
– The Mad Death (1983) (Miniseries)
– 1918 (1985)
– The Dolphin’s Cry (1986) (Soviet)
– Epidemic (1987) (Danish)
– 12 Monkeys (1995)
– Outbreak (1995)
– Virus (1995)
– Doomsday Virus (1996) (Miniseries)
– Quarantine (2000)
– Infection (2004) (Japanese)
– Fatal Contact: Bird Flu in America (2006)
– The Host (2006) (Korean)
– Have Mercy on Us All (2007) (French)
– Pandemic (2007) (Miniseries)
– Blindness (2008)
– Doomsday (2008)
– Carriers (2009)
– The Crazies (2010) (Remake of 1973 version)
– Contagion (2011)
– Infected (2012)
– Flu (2013) (Korean)
– 93 Days (2016)
– The Hot Zone (2019) (Miniseries)
– Virus (2019) (Indian)

And as my research assistant pointed out, this does not consider the flood of zombie movies. So, this pandemic was in the mind of filmmakers. Perhaps more significantly Bill Gates, in a 2015 TED talk hit the nail squarely on the head in predicting and discussing preparations for a pandemic. You may or may not like Gates, but undoubtedly, he is a brilliant man and spends his hours reading and educating himself.

My conclusion is that the COVID-19 pandemic was most foreseeable and “we” failed to prepare. There will be many legal actions stemming from the coronavirus and the issue of foreseeability will be front and center.

On a related issue, the Trump campaign held its first campaign rally in months recently in Tulsa, Oklahoma. Leaving politics aside, as my interest is in elections administration, so no matter whom you favor, get out and vote, by mail or in person on November 3, the Trump campaign required a coronavirus waiver of all who registered to attend. The waiver language is as follows:

“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 the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Donald J. Trump for President Inc., BOK Center, ASM Global or any of their affiliates, directors officers, employees, agents, contractors, or volunteers liable for any illness or injury.”

Is this waiver effective and enforceable? If I accompanied someone and did not execute the waiver, am I bound? As well, the waiver language extends beyond COVID-19 and arguable extends, for example, to a fall because of a defective condition at the rally site. Also, while many entities are within the scope of the waiver, the president himself is not. Might President Trump be vulnerable to a claim by a person that contracts COVID-19 or incurs an injury at the rally.

Much to consider and process. Much more to come.

Allan Opsitnick

Author: opsitnickslaw

Allan J. Opsitnick J.D. and B.A. Degrees, University of Pittsburgh

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