The waiver of liability that the Trump Campaign made Tulsa rally-goers sign before they could get tickets to the event will most likely not shield Trump or the Trump Campaign from liability. Predictably, it will be about as effective at preventing liability for money damages as those CDAs were in preventing John Bolton from writing a book or Stormy Daniels from describing her encounter with the future president.
If clusters of CV-19 cases provably arise as a result of the Tulsa rally, Trump’s personal liability and the liability of the campaign could be enormous notwithstanding the waiver. It is possible to imagine at least hundreds of millions of dollars in liability to the Trump Campaign and to Trump individually. Let me explain.
There is broad scientific consensus that Trump’s Tulsa rally will cause more cases of COVID-19 and indeed may become a super-spreader event, causing many more cases and deaths. All the elements are there: 19,000 people crammed in an indoor venue where social distancing is impossible; 19,000 shouting and screaming and thus showering one another with trillions of droplets of aerosolized GOP spittle. Wearing masks, which could have been made mandatory, is optional, and the social pressure not to wear masks is enormous. All this is foreseeable. Cases of CV-19 in Oklahoma are skyrocketing and in Tulsa have tripled in just two weeks.
By now, everyone following this planned catastrophe knows that anyone requesting and receiving a ticket must first sign a waiver. The waiver states [online version quoted]:
By clicking register below, you are acknowledging that an inherent risk ofexposure 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.
Why is the waiver ineffective? Let me count the ways. First, and most obviously, if clusters of rally-goers become infected, and then go home and infect family members and friends that did not attend, those non-attendees did not waive anything. But lets now focus on the 19,000 who did attend.
There is no doubt that civil liability for spread of coronavirus from the event is governed by Oklahoma state law. The leading case in Oklahoma, decided by the Supreme Court of Oklahoma in 1996, is Schmidt v. U.S. Schmidt arose in a relatively unusual way, in that the case (involving a government-owned riding stable) was filed in federal district court, which recognized that it must apply the state law of Oklahoma, and the federal court certified a question of state law to the Oklahoma Supreme Court. (This is an established procedure but not one employed frequently.) The questions were (1) are advance exculpatory provisions enforceable under Oklahoma state law, and (2) under what conditions could an individual who signed the exculpatory waiver nonetheless maintain an action for damages? While holding exculpatory waiver provisions generally valid, the Oklahoma high court held —
While these exculpatory promise-based obligations are generally enforceable, they are distasteful to the law. For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages; (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-à-vis personal safety or private property as to violate public policy.
The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence.
[All italics are in the original.] Trump’s Tulsa waiver flunks on numerous counts. Note especially item 3(a) in the quoted passage: “enforcement of these [waiver] clauses must never be inurious to public health.” The waiver defense crashes and fails right there, as it is hard to imagine a non-violent event more “injurious to public health.” Furthermore, it is surely “willful” and an act of gross negilgence and more. The infected plaintiffs will introduce in evidence that fact that Drs. Anthony Fauci and Deborah Birx of Trump’s own Coronavirus Task Force warned against the event, a devastating fact at any trial seeking economic damages and punitive damages.
Moreover, there was indeed, in the words of the Schmidt court, “a vast difference in bargaining power.” First, Trump (who oversaw the Coronavirus Task Force) presumptively knew far more of the facts regarding the danger of an event like the rally than any rally goer could have. Second, how in the world could a rally-goer bargain to modify or remove the waiver clause?
The Schmidt decision remains the binding law of the State of Oklamoma. It is not unique. Waivers of future negligence are generally disfavored by the courts.
All the elements of tort liability are there. Apart from the waiver, Trump as well as the Trump Campaign owe a duty of care to the rally-goers notwithstanding their arguable stupidity in attending such an event. The infections are foreseeable, and Tulsa public health officials warned against it. Even the reinfections to those not in attendence are foreseeable. The rally will have proximately caused the infections, a problem of proof that can be overcome if there are clusters of cases. If there are enough infections and enough plaintiffs, there can either be a class action or, more likely, a series of individual actions consolidated before a single judge and jury. This could amount to an enormous sum, even before punitive damages, which can double or triple the recovery. Any infected plaintiff will likely sue not just the Trump campaign but Donald Trump individually, and Trump is indeed an individual participant in the event and the mass tort.
It could not happen to a more irresponsible defendant sponsoring a more irresponsible event. It has the predicatble potential of infecting hundreds (or more) and killing dozens. It also has the potential of wiping out Trump, waiver or no waiver.