Burden on California runners to keep distance

Officials in some California communities are placing the burden on runners to avoid exposing others to “airborne particles,” even if it means moving off sidewalks or yielding to non-runners.

However, some officials acknowledge enforcement will be an uphill battle. As for the idea that runners pose a greater health risk than other pedestrians, the science is not necessarily on their side.

Yet, runners are being singled out as more dangerous, on the theory we "more forcefully expel airborne particles" in a way that decreases the effectiveness of social distancing. One such order takes effect on Monday in Yolo County, California, near Sacramento. The order reads:

Because running or bicycling causes people to more forcefully expel airborne particles, making the usual minimum 6 feet distance less adequate, runners and cyclists must take steps to avoid exposing others to those particles, which include the following measures: crossing the street when running to avoid sidewalks with pedestrians; slowing down and moving to the side when unable to leave the sidewalk and nearing other people; never spitting; and avoiding running or cycling directly in front of or behind another runner or cyclist who is not in the same household.

Similar orders took effect within the last week in several other California counties, including San Mateo County in the Bay Area.

The idea that runners and cyclists "more forcefully expel airborne particles" is not universally held. Earlier this month, Outside Magazine cited context from experts in infectious diseases and airborne-disease transmission indicating there is not conclusive evidence indicating runners pose greater health risks than others.

Nevertheless, the California orders generally recommend wearing masks, even though the orders fall short of requiring them for runners.

Again, from a scientific standpoint, the jury is still out on whether masks make a difference during exercise. In fact, wearing a mask could increase runners' chance of health difficulty. The Outside Magazine article by Martin Fritz Huber quoted Dr. Sarah Doernberg, an associate Professor at University of California San Francisco who specializes in infectious diseases, who said:

Covering your nose and mouth while you’re exerting yourself may lead to other medical problems—and the fact is that your mask is going to get wet. As soon as the mask gets wet, it’s not going to be effective anymore.

While the orders in California counties do not require runners and cyclists to wear masks, they do require social distancing. The San Mateo County order reads:

Wearing a Face Covering is not required while engaging in outdoor recreation such as walking, hiking, bicycling, or running. But each person engaged in such activity must comply with social distancing requirements including maintaining at least six feet of separation from all other people not part of the same household to the greatest extent possible.

What is the penalty for violating the orders? The San Mateo order warns a failure to comply “constitutes an imminent threat and immediate menace to public health, constitutes a public nuisance, and is punishable by fine, imprisonment, or both.”

The Yolo County order takes a softer stance, explaining that enforcement efforts will be directed otherwise:

Individual violators are unlikely to be cited, with enforcement directed instead at non-complying Essential Businesses and other enterprises. Despite this, through voluntary compliance, all individuals have an opportunity to contribute to public health and the welfare of our community. Individuals that choose not to wear Face Coverings when required by this Order may encounter difficulties such as being refused access to public transit and Essential Businesses.

Can municipalities regulate runners in the first place and treat them differently than other pedestrians? We have been down this road before.

In the early 1980s, as the "running boom" was really booming, runners were singled out in communities including Holmdel Township, New Jersey and Mill Neck, New York with ordinances that required runners but not other pedestrians to wear reflective clothing. The ordinances also threatened fines and even jail time for violating traffic laws.

The ordinances were not broadly enforced. And as officials in Yolo County observed in the order that takes effect Monday, enforcement will be a difficult endeavor with respect to social distancing as well.

Still, laws or not, runners are wise to do their part to maintain social distancing and keep their communities safe, while also keeping themselves safe. That includes taking extra precautions when moving from a sidewalk to the street to maintain social distancing, a step the California orders seem to suggest if not require.

www.lawofrunning.com

Amazon: The Law of Running: A Runner's Guide to Legal Rights

Podcast: California Counties Single Out Runners to Maintain Social Distancing

(Photo: Downloadable poster at www.eastbayexpress.com; Steve Aggergaard photo)

Coronavirus concerns: Can I blame my gym?

It appears gyms will be among the first businesses to open in coming days and weeks, at least in Georgia and other states and cities that follow White House guidelines for reopening parts of the nation. This news likely is welcomed by some runners who rely on gyms for cross-training or who prefer gym treadmills, particularly during the upcoming summer months.

As they reopen, gyms are likely to take extra precautions such as providing means for social distancing and performing deep cleaning. Still, the health effects of going to the gym are, at best, unclear. The question arises: Can I sue my gym if I get sick from COVID-19?

To answer the question, the first place to turn is a gym member's written agreement. The gym contract undoubtedly has language that tries to shield the gym, its owners, and its employees from from a broad range of liability ranging from equipment malfunctions to medical emergencies.

Not surprisingly, the language is heavily tilted toward the gyms and their owners. Members might not have even read the language when they signed up for the gym. But usually that does not matter. Typically, courts enforce "exculpatory" language in gym contracts as long as the member could have read the language. Only rarely is not reading the fine print a valid legal defense.

There are exceptions and "exculpatory" language is not always enforced. Typically, no commercial entity, a gym or otherwise, can shield itself from conduct that borders on the criminal. Nor can gyms ignore known risks that are particularly hazardous.

Whether the sometimes-deadly strain of coronavirus fits that definition is unclear. However, should there be a lawsuit over a virus-related injury at a gym, the gym will have strong legal defenses in its favor.

Among the arguments is that gym members knew the risks or should have known the risks. It is a good argument, since news coverage of the health emergency is virtually constant. It would be difficult for a runner who uses a gym to plead ignorance about the potential health risks.

Even so, look for gyms to take additional steps to protect their members but also themselves, likely in the form of additional written warnings that inform us of risks, known and unknown, associated with heading to the gym during a pandemic.

And even without the protective language, a runner who sues a gym on the theory the facility caused illness faces an uphill battle in court. In that situation, the gym member and runner becomes the plaintiff and needs to prove the gym was the causal factor, and potentially the primary causal factor.

Linking illnesses such as viruses to particular causes is speculative and might be close to impossible.

www.lawofrunning.com

Amazon: The Law of Running: A Runner's Guide to Legal Rights

Podcast: Runners' Legal Rights as Gyms Reopen

(Photo credit: Tony Hall, Creative Commons)

Social distancing: Can I run in the street?

Sidewalks are meant for walking, and running. In fact, the laws generally require us to keep to the sidewalks when they are available.

However, some sidewalk laws provide an exception. In some states and localities, a sidewalk must be "usable" before we are legally required to run on it. In other places, the laws say it must be "practicable" for runners and other pedestrians to use a particular sidewalk before its use is required.

For example, Ohio’s law says:

Where a sidewalk is provided and its use is practicable, it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.

These days, the question arises: Is it practicable for runners to stick to the sidewalk when it is crowded with pedestrians who might or might not be practicing social distancing?

The answer is: It is hard to say. We are in uncharted territory, law-wise, health-wise, and running-wise. The last time the world saw a pandemic was 1918, a half-century before the “running boom.”

It is possible a judge or jury would see things a runner’s way if an injury occurred while a runner took to the street to avoid a large crowd of people. That being said, not all judges or members of juries share our passion for running. In some of their minds, if we cannot run safely on a sidewalk, we should not run at all.

We are in a tough spot, those of us who run but who are trying to be socially responsible. The best we can do is to stick to the sidewalk whenever and wherever we can, and to keep in mind the ultimate purpose of running, which is to stay healthy and stay in shape.

Above all else, be careful, regardless of whether you run on sidewalks or streets. Hospital emergency rooms are good places to avoid during the global pandemic.