As the world is tragically hit by the COVID-19 pandemic since December 2019, businesses have started to face a dilemma on how to survive and sustain themselves. Businesses in the tourism industry could not shy away from the crisis and have been severely affected by strict movement restrictions, lockdowns and closure of borders imposed by most countries around the World, theme park businesses included as they were forced to close their doors to visitors. Walt Disney reported a loss of $1.4 Billion of the business amid the pandemic. While the survivability of the business is a concern at one end, on another end, there will be a hindrance in the event the theme park corporation starts operating. These obstacles include facing multiple civil suits due to the COVID-19’s infection being contracted during the visitors’ time at the theme park. The virus is ubiquitous and if proper measures are not taken, the risk of infection will skyrocket.
Nevertheless, following some leeway or lifting of restriction movements ordered by some countries, many of the world wide theme parks have started to operate despite some known and apparent risk they may face. For example, Shanghai Disneyland opened its doors to visitors on 11 May 2020. Apart from that, San Diego Zoo and Safari Park, Legoland in California and SeaWorld in Texas and Florida have also anticipated to reopen during the pandemic. While this may not always be an approach welcomed by many people including healthcare practitioners during the pandemic, business corporations are in a difficult commercial position. Therefore, there is no surprise that such a decision was made by some theme park businesses. As theme parks commence their operation and welcome visitors into their fairytale walkway or adventurous rides, a risk for a visitor contracting Covid-19 still exists. This article will address the legal obligation and steps that may be taken by theme park businesses should such a case arise.
In discussing the opening of the theme park during the pandemic, a question that would always pop up in mind of many is whether the theme park corporation owes a duty of care towards its visitors and to other stakeholders as occupiers of the theme park premises in the event anyone contracts COVID-19 from the visit. In answering this question, we refer to the case of Wheat v E Lacon & Co Ltd  AC 552 (“the Wheat case”) where Lord Denning held :-
“wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an “occupier” and the person coming lawfully there is his ” visitor “: and the ” occupier ” is under a duty to his ” visitor ” to use reasonable care. In order to be an ” occupier ” it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be ” occupiers “. And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other.”
Based on the above, it is reasonable to infer that the theme park corporation does owe a duty of care towards the visitors to some extent. If it can be proven that proper safety measures or precautions were taken or practiced at the theme park, legally speaking, the corporation may not be liable for the transmission and/or for the contraction of COVID-19 that might take place within the premises due to negligence of the corporation. However, this issue is still an open-ended legal issue till now.
As this area of suit is unprecedented, we believe the judiciary will take notice of the Wheat case and apply the law of tort under occupiers liability whether a cause of action is sustainable by ascertaining the following issues :-
(i) duty of care owed by the theme park;
(ii) breach of the duty of care; and
(iii) whether the breach has cause the transmission of disease which was not too remote.
We foresee that the issue on remoteness may be heavily argued by the Parties and could be an uphill task to prove, particularly for the party initiating the civil suit as he who alleges has the burden to prove his claim.
Defences available under the law of tort include volenti non fit injuria, exclusion or disclaimer clause and/or contributory negligence. These may be possible defences to be raised in the event a suit is filed against the theme park corporation. However, it is also prudent for the theme park corporation to take some precautionary and preventive measures or steps to mitigate its liability or in some instances to release itself from liability.
Perhaps, theme park corporations may want to consider the following steps:-
a) to increase safety & hygienic measures – for example implementing temperature checking, compulsory use of face masks, hand sanitizer to be provided at every entrance or stand, adding hand sanitizers and handwashing stations within the premises of the theme park;
b) to exercise strict adherence to the Government Standard Operating Procedures (SOPs) and providing the same to the visitors. The theme park corporation may consider providing a short SOPs briefing at the entrance prior to entry of the visitors;
c) to obtain a good health declaration from each visitor prior to his/her entry into the premises of the theme park. This may be done digitally;
d) to obtain a waiver form executed by the visitors upon purchasing tickets, which may include a disclaimer clause by the theme park;
e) regular sanitation and disinfection of the theme park’s rides, facilities, service centers, and food & beverages stalls and utensils and maintaining such reports of the said sanitation and disinfection;
f) denying entry to visitors with symptoms such as cough, cold and etc;
g) limiting the number of visitors into the premises of the theme park such that the number of visitors cannot exceed 30% of the theme park capacity. Such limitation may also be imposed on certain age group of visitors;
h) to provide employees with new well-rounded health safety training and to have regular health checks with the employees and/or other stakeholders working within the premises of the theme park;
i) gradual reopening and/or partial reopening as well as limiting operating hours;
j) to add more notices and reminders for safety and health measures within the premises of the theme park;
k) to place more qualified health officers within the premises of the theme park;
l) Physical/social distancing to be maintained at all material times. The theme park corporation may decide on the suitability of certain rides and their ability to maintain social distancing amongst visitors.
*this list is non-exhaustive.
It is pertinent that a good and strict risk management program or mechanism by the theme park corporation be put in place as this would be able to create space in defending the corporation and/or to mitigate its liability. It is understandable that these extra steps would cost a fortune to maintain. However, these efforts with proper implementation and execution may be able to avoid opening of certain legal pandora box against the theme park.