As states end or relax their shelter-in-place orders, many business owners are facing the real possibility of claims by customers alleging that they contracted coronavirus in a place of business. Regrettably, the claims are inevitable, perhaps more so in certain industries than others. Business owners must ensure that they are prepared to reopen and implement a post-COVID-19 plan that includes mitigating risks for potential claims, even in states that have offered immunity.
As of the date of this alert, the WHO has reported approximately eight million confirmed cases and over 400,000 deaths worldwide. In the United States alone, the WHO has reported over 2.1 million confirmed cases and over 100,000 deaths, and the numbers increase daily. Given the scale of infection, business owners must be prepared to re-enter the economy with a plan to avoid losses related to COVID-19 premises liability claims.
The first reported claims related to COVID-19 in the United States were from customers onboard various cruise lines. (Ronald Weissberger, et al. v. Princess Cruise Lines LTD., 2020 WL1151023, 20-cv-02267 (C.D. Cal. March 9, 2020); Debra Dalton, et al. v. Princess Cruise Lines LTD., 2020 WL1521879, 20-cv-02458 (C.D. Cal. March 13, 2020)). Those customers alleged that the cruise lines ignored information about the pandemic and were negligent in failing to warn them about the virus.
Additionally, plaintiffs have filed a class action against the People’s Republic of China and other defendants alleging that they acted from their own economic self-interest and failed to report the outbreak and unreported cases and also failed to contain the outbreak despite knowing the seriousness of the situation. (Logan Alters, et al. v. People’s Republic of China, et al., 2020 WL1223865, 20-cv-21108 (S.D. Fla. March 12, 2020)). The plaintiffs further alleged that the conduct was egregious and contrary to the precepts of humanity, and that the plaintiffs suffered as a result.
The State of Louisiana recently offered some protection to business owners, joining North Carolina, Oklahoma, Utah, and Wyoming, which have similar laws on the books. It is expected that other states will follow. The bills, which Louisiana Governor John Bel Edwards recently signed, provide an armor of protection for government agencies and employees; businesses, including the meetings and conventions business; restaurants; and donators of recovery services or products that are outside the typical course and scope of their operations.
For Louisiana’s robust restaurant industry, restaurant owners, operators, employees, contractors, and agents—who are in compliance with at least one proclamation regarding COVID-19 procedures established by federal, state, or local agency— will be protected from any civil liability for injury or death due to COVID-19 infection transmitted through the preparation and serving of food and beverages by a restaurant during the COVID-19 emergency. The protection covers the serving of prepared food and beverage products by dine-in, takeout, drive-through or delivery.
The bills provide relief to business owners, governmental personnel, and distributors of protective goods and services if they follow safety protocols established by federal, state, or local agencies. It is important to note that there will be no shield from liability if the injury or death was “caused by gross negligence or willful and wanton misconduct.”
While it is likely that business patrons will contract COVID-19 as cities repopulate, plaintiffs in litigation may have a difficult time identifying a specific business as the source of the illness because the customer will have the difficult task of proving that the business had actual or constructive notice of COVID-19’s presence on the premises.
To recover damages, a plaintiff must show that:
- The business had a duty to reasonably protect the plaintiff from contracting COVID-19;
- The business breached that duty;
- The business was the cause in fact of the plaintiff contracting COVID-19; and
- The plaintiff suffered damages
The burden is extremely high for customers, but these claims are evident and will require that mitigation steps are present to minimize the risk.
Mitigation is Key
While Louisiana has made strides for protection in many areas of business, there is no current legislation enacted by Congress to provide immunity to all business owners from COVID-19 related claims. Furthermore, there is no way to completely prevent customers from racing to the courthouse to file claims related to contracting COVID-19, even in Louisiana.
While there is no one-size-fits-all solution regarding potential claims, business owners and insurers may be better prepared to mitigate and/or defend those claims by implementing some of the following suggestions:
- Paying close attention to and implementing guidelines set by the CDC and WHO
- Practicing social distancing
- Limiting occupancy during business hours
- Instituting proper hygiene techniques for customers
- Providing warnings of precautions to take to avoid contraction
- Being proactive if you suspect your business has a suspected case by contacting an attorney and proper insurance carrier
- Posting signage regarding sanitation and employee hygiene practices