Cookie Bux has two elementary age children, Kitten and Jeff who really want to go Trick-or-Treating this Halloween. In fact, Jeff has been wearing his Star Wars Stormtrooper costume around the house since September. Can Kitten and Jeff Trick-or-Treat this year?
Executive Order (GA 32)
The most recent executive order GA 32 issued by Governor Greg Abbott on October 7th updates the series of State disaster proclamations first issued on March 13, 2020. The current executive order prohibits outdoor gatherings in excess of 10 people unless approved by the mayor of the city or the county judge in an unincorporated area – except professional and collegiate sporting events, museums and the like. Further, except as recommended by the Texas Department of Health Services in their minimum standard health protocols, those in groups of 10 or less must maintain six feet of social distancing from those not in their group. Finally, it notes that all existing state orders are amended to eliminate jail as a penalty for violating either an executive order or any similar locally issued orders.
Centers for Disease Control
The Centers for Disease Control and Prevention (CDC) released their guidelines for how to safely celebrate Halloween during the coronavirus pandemic. Not surprisingly, the CDC recommended avoiding high-risk activities, including traditional door-to-door trick-or-treating, trunk-or-treating, attending indoor costume parties, visiting indoor haunted houses, and going on hayrides or tractor rides with large groups of people. Alternatively, the CDC recommended carving pumpkins and holding virtual costume parties.
Any lawsuit over a COVID-19 infection would likely be a negligence claim. Given the time required for symptoms to surface after contact, it is difficult to prove that any one person caused the infection. Moreover, provable compensable damages also present a challenge. Therefore, the legal risk to the one passing the infection seems to be low – the social risk is undoubtedly high. Yet, that would not preclude the filing of a lawsuit claiming that an infected patient unreasonably came into contact with a litigious plaintiff.
Realistically, it is unlikely that many parents, like Cookie, will take their elementary age children trick-or-treating indiscriminately in the neighborhood this year. For those who dare to venture out, the CDC recommends (i) those providing the treats avoid direct contact with the trick-or-treaters, (ii) giving out treats outdoors, if possible, (iii) setting up a station with individually bagged treats for kids to take, (iv) washing hands before handling treats and (v) wearing a mask. The CDC notes that a costume mask is NOT a substitute for the highly recommended cloth mask, and further warns against wearing a costume mask over the cloth mask. And, of course, suggests maintaining social distance of six feet and wash hands / use sanitizer frequently.
Tilting the Scales in Your Favor
Cookie should consider coordinating a socially distanced gathering (and perhaps exchange of Halloween treats) with close friends who also have elementary age children and who she knows will observe the practical recommendations of the CDC and the Governor’s requirements.