In Sonoma County outdoor spectator sports are shut down because crowds are vectors for the spread of the deadly Covid-19 virus. But some people and businesses believe themselves to be exceptions to the public health rules made to protect us all.
On Saturday night, the Petaluma Speedway hosted the West Coast Stock Car Hall of Fame Classic, and the Bohemian was on the scene at the fairgrounds, observing. Citing Covid-19 public health order restrictions, the Speedway has closed the main grandstand where generations of fans once cheered the raucous machine circuses. Racing fans can now safely watch the exciting contests online. But some diehards are putting themselves into harm’s way, paying three times the regular ticket price of $16 to physically attend the races by purchasing tickets disguised as “pit passes.” Many of these attendees were not wearing masks, nor keeping safe distances from each other—exhibiting the kind of behavior which is blasting the flames of Covid-19, nationwide.
Speedway managers are trying to skirt the public health ban on crowd spectating by charging fans $45 for viewing the races from a smaller, benched viewing area across from the main grandstand, accessed through the pit area. Trying to cover its potential liabilities for spreading Covid-19, the Speedway requires all who enter to sign a blanket liability waiver in case they are infected with Covid-19 whilst on the premises of the racetrack.
Legal experts opine that these Covid-19 waivers are not worth the paper they are printed on. (Adults are required to sign away a child’s right to sue for negligence). For one thing, the Speedway is not consistently enforcing all of the mandated safety precautions it claims to be abiding by on the Covid-19 protection signage it is compelled by law to display. Rather, the Speedway is putting everyone in Sonoma County and beyond who, during the next two weeks, comes into contact with a fan or driver or official who was infected there at risk of illness and death. Are we all agreed that watching stock cars race is worth dying for? Of course not.
On Saturday, the Bohemian observed, and took photos of, unmasked staff selling the $45 “pit passes” to non-mask-wearing fans who were paying to watch. A handful of people roaming the pit, and a few of the spectators watching the races, wore masks, but most did not. Even the racing officials lining up the cars to enter the track were not wearing masks as they leaned in to talk to unmasked drivers.
The Speedway manager, Rick Faeth, said in a telephone interview that 300 people attended the race on Saturday, including drivers and their crews and Speedway staff of eight and the pit-pass-purchasing spectators. Although Speedway staff is required to take the temperature of all those entering the racing pit, the Bohemian did not see any one having their temperature taken as they strolled through the gates past a not-masked security guard who monitored the entrance for those bearing pit pass wristbands while sitting in a golf cart.
Faeth said he did not have enough staff to “play mask monitor,” but that in the future he would ask the EMTs staffing the Fire Department ambulance that is on hand for car accidents to help discipline the crowd. He commented that the racetrack’s insurer requires that all those who enter to sign the Covid-19 waiver form and that he cannot speak to its legality.
The Speedway’s Covid-19 waiver format was created by California Fair Services Authority, which insures fairs and racetracks in California. The waiver that all who enter the racetrack are required to sign acknowledges, “I am aware that I could be infected, seriously injured or even die due to Covid-19. … I am voluntarily participating in these activities with knowledge of the danger involved and agree to assume any and all risks of bodily injury, death or property damage, whether those risks are known or unknown.”
The densely worded waiver forever indemnifies the Speedway operators, the Sonoma-Marin Fairgrounds, Sonoma County, the state of California and unnamed contractors from “any and all liabilities,” not just for contacting Covid-19, but for any type of harm that occurs to them on the premises. Remarkably, that blanket indemnification includes any acts of negligence by all of the above. And even your heirs and survivors are not allowed to sue if you are killed by Covid-19 contracted at the Speedway. Or so says the waiver, which does not mean it is legally valid.
Legal expert Allison Zieve, with the Public Citizen Litigation Group, reviewed the Speedway’s Covid-19 waiver. She said, “The waiver sounds way overbroad. I am skeptical that any court would enforce it as written, certainly not as to many or most of the claims that it purports to waive.” Its signers are not informed that, in actuality, they really cannot sign away all of their rights to sue. They are just encouraged to believe that the waiver is binding on them and their heirs in perpetuity—but it is not, so the Speedway is not telling the truth to those who are entrusting it with their safety and well being.
While it is not uncommon for skydiving and other businesses selling dangerous experiences to require liability waivers, they cannot escape liability for negligence, which is what the Speedway and its insurer are trying to do—pretending that people can sign away rights to sue for damages under all circumstances. Attorney Zieve asks, “I wonder if the waiver was drafted so broadly just to discourage people from filing lawsuits in the first place, because they assume that they can’t?”
Writing in the legal profession’s ABA JOURNAL, Tyler T. Rasmussen, a litigation partner with Fisher Phillips in Irvine, California asserts, “To be the most enforceable, you have to have a [Covid-19] contract that is narrowly tailored to your business. It has to be clear and unambiguous and easily understandable by the individual who is reading it.”
There is a larger question to ask, though. The Speedway appears to be violating the state and county requirements that it take the temperature of all those who enter and enforce physical distancing and mask wearing. Since it takes a person infected with Covid-19 two weeks to show symptoms, proving that the virus was contracted at a specific time and place by a specific person is extraordinarily difficult. Why is the Speedway requiring its drivers and the spectators to sign away their right to sue if it is really operating its business according to the public health rules that are designed to protect everyone? California law explicitly protects Speedway employees from signing away their right to sue for negligence. But the fans are told otherwise—and we are all at risk of being victimized by what looks like legal jabber covering for potential negligence.
With new infections sharply rising, Sonoma County Health Officer Dr. Sundari Mase has issued a public warning, “Even gatherings over 10 people are fueling rising infections. Your social bubble should really consist of your household members at this time.” That applies to stock car racers and their pit pass holding fans, too.