Risky Business
With COVID-19 surging in the United States, an event safety expert offers an opinionated look at the challenges of opening gathering spaces during an ongoing pandemic
BY STEVE ADELMAN
IN LATE MAY, I made the short drive from my home in Scottsdale, Arizona, to the nearby community of Chandler, home to the Wild Horse Motorsports Park. It was an especially hot evening, and the park was hosting a drive-in electronic dance music festival called Road Rave. It was my first live event after three months of coronavirus-induced quarantine. I was a guest of one of the producing organizations, which generously provided me access to the entire event site, as well as its planning documents. I wanted to see how a drive-in EDM show would work, since that was not a thing in the pre-COVID-19 world. I was especially interested in how the organizers maintained social distancing, and whether a reasonably healthy show could be consistent with patrons having a good time. Anyone who doesn’t regard entertainment as an essential service should consider the conviction it takes to attend an outdoor EDM show when it’s 111 degrees.
A typical EDM show has all the characteristics of live events that attract young, enthusiastic audiences, including a willingness among participants to pack themselves into confined areas and converse at extremely close range to be heard over the thundering beats. Road Rave advertised itself as something a little different: an EDM party where social distance mattered. The setup was the same—a large stage facing an even larger area for the audience—except that the audience space was subdivided into a grid suitable for the practice of social distance, with each visitor space accessed by car. Between 300 and 500 vehicles were permitted, with a maximum capacity of eight people per vehicle. Each car was sent to its reserved parking space, which was marked by rope and rebar and lines painted on the ground. Patrons were handed two-sided paper instructions that included event rules, lists of prohibited and allowed items, a phone number for on-site medical emergencies, instructions and a QR code to order food and drink that could be delivered to them, and egress procedures.
Road Rave, a drive-in electronic dance music festival held in late May near Phoenix, seemed to offer a workable solution for COVID-era entertainment. Clockwise from top left: Patrons showing their appreciation for a performer; event staff, who provided patrons with detailed festival instructions; and the grid of the drive-in viewing area. PHOTOS/JACOB DUNN
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COVID, EVENT SAFETY, AND THE LAW
In the first month of event closures, the legal news related to COVID-19 was all about lawsuits against insurance companies for coverage of business interruption losses. The next topic of conversation was the scope of force majeure provisions, which everyone suddenly discovered amid the boilerplate provisions at the end of their contracts. The insurance coverage issues will likely be litigated for years, and the force majeure arguments subsided when it became clear that no one in the event industry had money to argue over anymore.
With the focus on reopening, the legal conversation has shifted yet again. One of the few things I think I can say with confidence, considering the pandemic-addled future, is that in the current skirmish in many parts of the United States between desire versus science, assembly occupancies will reopen as soon as elected officials allow them to. And everywhere—especially in those parts of the country where elected officials give the thumbs up—people with legal exposure will turn to their lawyers for protection from what they fear is an army of personal injury lawyers queuing up to accept COVID-19 cases.
Here’s the thing, though: no such army exists. Injury and death claims arising from COVID-19 will be almost sure losers for attendees of live events. The reason has to do with the plaintiff’s burden of proof in tort cases, specifically the element of proximate cause. I’ve been asked about the threat of lawsuits so often that I recorded a detailed YouTube video explaining the legal issue and how it applies to live event spaces.
Nervous event operators will also ask their lawyers for waiver of liability forms to keep workers or patrons from suing. For the reason explained above, waivers will not be necessary, which is good because they will not work anyway. President Trump provided a timely example when he required people to waive their right to sue as a condition of attending his June rally in Tulsa, so I also made a YouTube video about the modest value of waivers of liability.
As I believe is often the case, operational problems can be better solved by doing the right thing rather than by passing responsibility to someone else. I hope the example set by Disney—who else—takes hold. Some event organizers warn patrons that exposure to COVID-19 is currently a risk in any public place, then demand that those patrons assume all risk of illness. Disney opted for a different approach. On its website about its reopening plans, the company provided information about its health and safety measures, followed by a link to the CDC (cdc.gov/coronavirus) so visitors can learn how to help themselves. For now, though, the virus appears to be having the last word. In late June, Disney cancelled its reopening plans for both its California and Florida theme parks. Even in the Magic Kingdom, coronavirus does not just disappear.
Treating patrons with respect and kindness is yet another way Mickey and Minnie build positive relationships from generation to generation. I wish more people followed their excellent example.
—S.A.
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My observation walking around the site that night was that the regimentation necessary to hold the event during a pandemic didn’t dampen patrons’ enjoyment of it. In general, people seemed to stay in their respective marked areas, which had the feel of tailgating and offered them plenty of room to dance, talk, eat, or do whatever they chose within their groups. Many cars were decorated with signs and glow sticks, and the attire, including some face coverings, was EDM appropriate. The audio and video quality of the show itself were good enough. Kids looked like they were having fun. Once I got over the novelty of talking with people in person rather than through a video monitor, I had fun, too. As a trained observer, I would say that the event’s action plan was carefully considered and conscientiously implemented. I am not aware of anyone who has contracted coronavirus as a result of attending the event. As a test of a concept to see if it could safely be scaled into something profitable, the weekend was a success.
I am a lawyer whose practice focuses on safety, security, and risk management at live events. Since the United States shut down in early March due to the COVID-19 global pandemic, my work has shifted to writing health and safety guidance for entertainment and sports venues, corporate activations, festival and event planners, and all the people who work back-of-house to make the magic happen. Creating guidance has gone well, and our target audience of event professionals is taking it to heart, which is very gratifying. As my Road Rave experience demonstrated, I am encouraged by the resourcefulness of skilled and creative presenters backed into a corner by circumstance, and by patrons willing to do their part to help ensure as safe an event as possible.
Elsewhere, however—including just up the road in Scottsdale—patron compliance with basic health and safety measures has been much more variable, and progress, if you can call it that, continues to be spotty at best and catastrophically wrongheaded at worst. As bars and restaurants and other assembly occupancies around the country have begun to reopen, patrons have widely ignored public health directives urging the use of masks and social distancing. Some of those areas, including Arizona, Texas, and Florida, have seen alarming spikes in new coronavirus infections, with much of the surge driven by people in their twenties and thirties.
Suffice it to say our current interim period—the time following the lifting of stay-at-home orders but before a vaccine or cure for COVID-19—will be filled with challenges for live events and for assembly venues with hopes of reopening. My purpose here is to trace those challenges to their source—that is, to distinguish problems we cannot fix (because you can’t reason with a virus) from the wounds we stubbornly inflict upon ourselves. My caveat is that I am writing this in mid-late June 2020—my observations constitute a snapshot and analysis of the current moment, and a projection into the future based on what we know now, which may be very different from what we know a couple of months, or even a couple of days, from now.
By the time you read these words, they will either be eerily prescient or charmingly off-base. Time will tell.
The challenges of reopening during a pandemic
On an operational level, planning to reopen an assembly occupancy during a pandemic requires an enormous amount of attention to detail, none of which was part of a life safety analysis prior to this. Consider just a few of the new issues related to ingress, circulation, and egress, the three phases of any event.
Road Rave, a drive-in electronic dance music festival held in late May near Phoenix, seemed to offer a workable solution for COVID-era entertainment. Clockwise from right: The scene from the viewing area; event staff, who provided patrons with detailed festival instructions; the grid of the drive-in viewing area; and patrons showing their appreciation for a performer.
In the sepia-tone days before March, risk management at the point of public ingress was mostly about checking tickets and preventing weapons and illegal drugs or alcohol from entering the premises. This was challenging enough. Now, responsible professionals will require some kind of testing or screening to reduce the likelihood that infected people will enter. The testing is often less robust for patrons than workers, and none of it is especially effective given the high number of people who will be either asymptomatic or pre-symptomatic carriers.
Interestingly, I have been receiving emails from purveyors trying to sell me thermal scanners, as well as other health and safety products including walk-through disinfectant gates and software for tracking cleaning and disinfecting schedules. The sellers of the (expensive) scanners seem surprised at my skepticism about any system that measures external body temperature—for the purpose of detecting COVID-19 infection, core temperature is what matters. The fact that 40–45 percent of infected people will be either asymptomatic or pre-symptomatic carriers tells me that one should invest sparingly in temperature-checking technology because a lot of infected patrons will get through even a robust temperature-screening protocol—COVID-19 is one sneaky devil. As for digitized versions of the old-fashioned sweep log, I’ve explained to several sellers that keeping track is the easy part—training staff to perform the task thoroughly is the challenge I care about more. As well, I am a fan of the fully integrated event management software programs that already exist and that I’ve seen put to excellent use at large stadiums and arenas. Any of these programs could document cleaning schedules quite nicely.
Regarding circulation, anyone can figure out that general-admission events will be hardest to reopen during the pandemic because social distancing is most difficult in undivided spaces. But every reserved-seat venue, from stadiums and arenas to offices, movie theaters, and airplanes, also has many areas where people circulate freely in undivided space before they take their seats. For example, restrooms, formerly just a sanitary issue, now present nightmarish logistical perils for every venue of any size. Underscoring this point, the first three issues addressed in an NFPA fact sheet, “Ensuring Safety As Buildings Re-Open to a New Normal” (available at nfpa.org/coronavirus), are egress management, queuing lines, and occupant flow, all of which must be managed even in the most docile reserved-seat environment.
At the end of an event, egress must be managed in new ways. No longer can everyone simply stand up en masse and shuffle toward the exit. When patrons are allowed to attend events again—which is gradually happening in some parts of the country as I write this—most will have to stay in their seats while people nearest the exit doors leave first, regardless of one’s desperation to relieve a babysitter or their own bladder.
The reopening of bars, restaurants, and other assembly spaces around the country resulted in lax public adherence to coronavirus-related safety practices, including social distancing. Clockwise from top: A water park in Florida; sidewalk refreshments in Arizona; and an evening street scene in Texas. All three states experienced sharp upticks in new covid infections. GETTY IMAGES
Because workers are no less susceptible to COVID-19 than patrons, the same health and safety risks must be managed back-of-house as well. Testing and face covering are easier to enforce because they can be written into contracts as a condition of employment, but loading in equipment, building stages, hanging lights, applying makeup, and preparing costumes are all antithetical to social distancing.
Artists and athletes are problematic in many respects. Most of them cannot maintain social distancing while they suit up to ply their trades, much less while they are performing. And because people who breathe hard aerosolize their droplets much farther than the usual six feet, if they’re not all confirmed to be infection-free before they are allowed together, infection clusters among performers and their handlers are almost inevitable.
At the Event Safety Alliance, of which I am vice president, we recognized these operational challenges because that is what we do and who we are. We created one of the first pieces of guidance for event professionals, the “Event Safety Alliance Reopening Guide”, because we understood the extent to which this devil really is in the details, and we correctly anticipated that state and local reopening plans would be very general and incorporate widely varying adherence to science versus other considerations.
Although we focused primarily on granular guidance for members of our own industry, ESA devoted a section early in its guide to patron compliance. As far back as early May, when elected officials began lifting stay-at-home orders, we saw safe events as a two-part challenge. On one hand, event professionals needed to use their operational skills and resources to mitigate the risk of infection inherent in their event, venue, and related logistics. But patrons could blow up the best-laid plans if they did not comply with the three simple things public health officials said everyone must do: maintain social distancing, cover one’s nose and mouth to avoid inhaling someone else’s infected germs, and wash their hands frequently and thoroughly.
We recognized that compliance would be a challenge, but we struck an optimistic note. Under the heading “How to Change Expectations,” we observed that “at this early moment, there is as much resistance to face coverings and social distancing as there was to bag checks and magnetometers in the United States after 9/11. We got used to them, and most people came to accept that they were for our own safety. A cultural change is necessary again. Widespread messaging by venue and event professionals can accomplish two essential goals: (a) patrons will learn that the new rules are for their protection, which will eventually lead to greater compliance; and (b) transparently showing new sanitary practices will coax nervous people back into public places.”
More than a month later, the early returns on the willingness of patrons to hold up their end of the health and safety compliance bargain are not promising. Therein lies the rub for entertainment and sports events seeking to reopen.
The will of the people
So far, the will of the people seems to lean heavily toward willful ignorance. This is hardly surprising given the actions of many of our public officials, who refuse to model healthy practices themselves, thereby undermining the infection control guidance from experts such as the Centers for Disease Control and Prevention. In May, for example, the Republican National Committee presented North Carolina with a proposal for its national convention, a plan that made no provision for social distancing or face covering. Shortly after that state wisely rejected the proposal, Florida welcomed the event with open arms. Over subsequent weeks, Florida became a national hot spot for new coronavirus infections. Since the learning curve seems especially steep in the Sunshine State, it appears that the convention will go on anyway.
As is true with distressing frequency, my home state of Arizona serves as a cautionary tale. Our governor, Doug Ducey, initially bucked pressure to loosen the state’s pandemic restrictions when he extended our initial stay-at-home order from April 30 to May 15, arguing logically that a state that was last in the nation for testing could not credibly claim it was ready to reopen. At that time, he issued strong words to venue operators who would violate public health rules issued by his office: “They’re going to have a class one misdemeanor, which is a $2,500 fine and up to six months in jail,” Ducey said publicly. “And we will enforce that.” In response, some of my neighbors threatened to climb over the fence of our locked community pool.
Alas, when the governor lifted the stay-at-home order in mid-May, he quickly undermined his own Phase 1 directive by doing nothing in response to the foreseeably huge Memorial Day weekend crowds in Old Town Scottsdale, the city’s big entertainment district. When he was shown pictures that included packed swimming pools and boxer Floyd Mayweather holding court at a club, our governor punted. “I don’t go to the clubs in Scottsdale, so you’re going to have to ask someone who has more information on that,” he told the Arizona Republic. The response reminded me of the minstrel’s ode to Brave Sir Robin from Monty Python and the Holy Grail: “When danger reared its ugly head / He bravely turned around and fled.”
It hardly takes a soothsayer to predict what happened next. The combination of widespread reopening of assembly occupancies and poor compliance with social distancing or face covering has led to a sharp rise in the number of COVID-19 cases in the state, including among the bar-going cohort of 18 to 24 year olds, and a corresponding rise in the number of deaths. Bars and restaurants are closing yet again.
There is a disconnect between reality and realization at work here that I associate with the “not in my backyard” attitude. Even my belligerent neighbors know that nearly 130,000 Americans, as of this writing, have already died from coronavirus this year. They’re not stupid—they just don’t think it has anything to do with them. They feel as untouchable as teenagers, and there are lots of people like them. During a group call I was on recently, the organizer of an event in a rural state reported that he was prepared to sell as many general admission seats as there were people willing to buy them. When he was asked why they would be willing to risk their health in such a manner, he laughingly described the general admission section as the “F#@!-it zone.”
The grim scenario in Arizona is being played out in other Sun Belt states that opened early and widely with the encouragement of leaders who expressly undermined their own public health directives. Every failure and retrenchment by the smaller venues allowed to reopen in Phase 1 further delays the time when live events—considered more difficult to operate safely—will get their turn. Time is money.
And in more hopeful news…
As frustrating as I find the NIMBYs in our midst, I am encouraged by the clear-eyed pragmatism of professionals like the Road Rave organizers. But drive-in EDM festivals aren’t the only general admission events that stand a good shot at reopening safely. I was recently contacted by a representative of a major auto show who was surprised by how strongly I supported her hopes to hold a show this fall. I explained that for an indoor general admission event, she nonetheless has many advantages that other events lack.
The next best thing to an outdoor venue is a building with lots of air flow and good HVAC, which describes the big convention halls that host most auto shows. The show floor can be configured however one wants, so wide pedestrian walkways can be designed for directional travel to maximize social distancing. Because there is no single primary attraction, the crowd is both mobile and dispersed, which tends to minimize the likelihood of breathing in someone else’s germs. In short, social distancing is already part of the fabric of an auto show. She could reduce the odds of infection even more by convincing patrons to wear face coverings. If the danger of COVID-19 is a function of the density of people breathing on each other in a confined space, rather than the sheer number of people, then why shouldn’t she hold her show? Events with built-in social distancing can reopen, and I think they should.
I can offer the same encouraging analysis to the operators of other naturally low-density venues, such as museums and aquariums. These facilities have all the advantages that are absent from Old Town Scottsdale clubs and other crowded event spaces where people stand close to each other without moving. The smart artists and operators of large events that fit the Old Town description have already thrown in the towel on 2020. “In an effort to prevent spreading the virus, many concerts, festivals, film and TV shoots, and other events have been canceled, rescheduled, or modified,” the online entertainment magazine Vulture reported in June. “No Instagram influencers are taking a trip to Love Island this year, as ITV canceled the summer 2020 season. Highly anticipated tours—including Taylor Swift’s Lover Fest, Harry Styles’s Love on Tour, and all of Billie Eilish’s 2020 dates—are being pushed back. And the Summer Olympics were canceled for the first time since World War II.”
Meanwhile, between the moment I complete this article and the moment you read it, professional sports may have resumed. I confess that I do not understand how this will be sustainable without the same suspension of disbelief that has allowed so many states to reopen despite rising rates of infection and deaths. The foundation of risk management is that while we are free to hope for the best, we also plan to mitigate the reasonably foreseeable risks. To quote my favorite Hunter S. Thompson line, “Call on God, but row away from the rocks.”
I will continue to advocate for drive-in EDM festivals and socially distanced auto shows, museum and aquarium exhibits, and similarly manageable events. I understand why they can reopen reasonably safely under these circumstances. As for sports and other big events, I will join everyone else in hoping for the best.
STEVEN A. ADELMAN is head of Adelman Law Group, PLLC in Scottsdale, Arizona, and vice president of the Event Safety Alliance. His law practice focuses on risk management, safety, and security at sports and entertainment events, and he serves as an expert witness in lawsuits arising from live events. He is a professor in Arizona State University’s Sports Law and Business program, and he is the lead author of the “Event Safety Alliance Reopening Guide” and the new Crowd Management ANSI standard. He creates the “Adelman on Venues” blog and videos, and appears frequently in national and local media.Top photograph: Getty Images