Legal Insights

Re-Opened for Litigation: Examining Potential for COVID-19 Third Party Exposure Claims Against Businesses and How to Mitigate and Defend Them

May 4, 2020
By: Daniel S. Altschuler, Christopher D. Gee, , and Anthony M. Knapp

As the stage has been set for the country’s economy to re-open pursuant to certain guidelines, one potential concern for many businesses will be the foreseeable swath of lawsuits that can be anticipated relating to alleged exposures and infections of COVID-19. In fact, the U.S. Chamber of Commerce released a letter to its members in mid-April noting some of the avenues of potential liability, which included general exposure claims and products liability, among others.

Given the potential liability, there are a variety of threats and avenues plaintiffs and their attorneys will likely attempt to utilize as the basis for claims. As such, it is essential to understand the standards/burdens that would govern these claims how businesses can mitigate exposure to potential lawsuits, and how to prepare to defend these lawsuits when they inevitably arise.

To illustrate, consider generally the various avenues of exposure a customer could be subjected to simply by entering and utilizing any variety of different businesses and establishments upon re-opening. Upon arrival the customer must open the door to enter the building which includes a handle that could have been touched by an infected person moments earlier, POSSIBLE EXPOSURE. The customer encounters a member of the staff or other members of the public present at the premises who are asymptomatic but nonetheless carriers of the virus and who fail to maintain adequate social distancing (i.e. too many people in a retail store aisle or someone at a restaurant walking past another table on the way to the bathroom), POSSIBLE EXPOSURE. While at the establishment, the customer touches an item accessible to the public (i.e. condiment bottles on a table at a restaurant, a box of cereal on the shelf, etc.) that was touched by a previous customer unknowingly infected and has not been sanitized or swapped out between contacts, POSSIBLE EXPOSURE. At some point during the visit the customer decides to use the establishment’s restroom, however again they must open a door possibly touched by other individuals who may be infected only seconds prior, POSSIBLE EXPOSURE. Furthermore, the restroom itself may have been designed to accommodate multiple individuals at the same time but is not properly spaced to allow social distancing at all times and there is another unknowingly infected person already present in the restroom when this customer enters, POSSIBLE EXPOSURE. Ultimately the customer contracts the virus, becomes ill (perhaps gravely), and sues the establishment alleging he/she contracted the virus and illness at the establishment. These are just a few possible avenues of exposure that could provide a basis for a lawsuit that must be considered by any business re-opening.

While there are many potential theories of liability that could sustain a lawsuit, the scenarios above generally would present causes of action under a negligence theory of liability based upon the customer’s exposure to the virus. General exposure cases would involve a cause of action wherein a claimant (customer, delivery driver, etc.) would allege exposure as a result of some action or failure to act on the part of the business. While this would most likely be a general negligence claim there could also be allegations of recklessness or willful conduct. As noted below, while plaintiffs would face the high hurdle of proving specific causation, i.e. that he/she contracted the virus in the specific establishment, if plaintiffs are able to properly plead a cause of action sufficient to survive dismissal at the onset, the potential volume of cases and litigation costs associated with defending such claims could be significant and could force businesses and/or their insurers to settle otherwise unviable claims. However, recent discussion at multiple levels of government, including from the U.S. Chamber of Commerce and White House economic adviser Larry Kudlow, has openly discussed and contemplated the potential for legislation to be enacted that could provide some level of safe harbor and immunity for general negligence actions where a business can show good-faith compliance with recommended safeguards and guidelines.

Burdens of Proof/Standards of Care

Generally, business owners have a non-delegable duty to their customers and must take reasonable measures to prevent or limit customers’ exposure to harmful and dangerous conditions. A business will be expected to exercise this duty by warning of hazardous or dangerous conditions that the business knows, or should reasonably know of. For example in Pennsylvania, customers are considered “business invitees” under the law and owed the highest possible duty of care. Similarly, in New Jersey, that duty has been described as “due care under all circumstances.” Given the abundance of information and news reports, businesses will face new challenges in preventing and defending lawsuits in light of the unique aspects presented by COVID-19.

A business can be subject to liability for failing to use reasonable care to discover the potential hazard. This is especially true for hazards the customer would be unlikely to discover on their own. Plaintiffs will typically focus on a business’s failure to inspect and maintain the premises and we can expect similar claims to be made for COVID-19 lawsuits. The lawsuit's plaintiffs bring against businesses for COVID-19 exposures may take the form of alleging violations of existing state or local ordinances addressing viral exposures, violation of the frequently changing statewide directives or organizational regulations (i.e. the CDC, OSHA, etc.) addressing COVID-19, or breach of the general duties described above.

While not an identical risk, businesses can learn from prior exposure cases like those involving Legionnaire’s disease from several decades ago (a form of bacterial pneumonia). There, the plaintiffs typically focused on the failure to clean the areas of potential exposure, failure to inspect or test known areas of potential exposure, and failure to warn customers of those dangers. The courts would frequently focus on evidence proving whether or not businesses should have foreseen the potential danger for exposure, and what steps were taken, or not taken, as a result of their analysis, including adherence to industry standards. Vellucci v. Allstate Ins. Co., 431 N.J. Super. 39, 42, 66 A.3d 215, 217 (Super. Ct. App. Div. 2013). Currently, businesses are expected to be fully familiar with the potential exposure of COVID-19 to their customers and take specific steps within their respective industries (e.g. restaurants) to militate against the risk of exposure. As both federal and state guidelines are updated frequently with new recommendations and requirements for businesses to open and remain so, these guidelines will likely be used as a basis for determining potential liability in COVID-19 related lawsuits and will establish both the standard of care and whether there was a breach of the standard of care.

Actions to Mitigate Exposure and Defend Lawsuits

With the above legal standards in mind, what specific steps should businesses take to minimize liability exposure and, if sued, how should they defend against potential litigation by a patron?

First, it is recommended that businesses comply with and document their compliance with the CDC’s Sanitation Protocols and any other applicable CDC or OSHA protocols. Additionally, your business should take reasonable steps in light of the exposure risks to ensure the safety of patrons. Further, should your business publish and/or follow any specific protocols or policies to militate against the risk of exposure, your business must properly comply with and document said protocols/policies as this will aid in defending COVID-19-related litigation. Conversely, the failure to follow protocols/policies will be used to establish that the business breached the standard of care.

The CDC’s recently updated guidance for businesses to prevent and halt the spread of COVID-19 is very useful. In the guidelines, the CDC recommends routine cleaning and disinfection throughout the premises as well as providing soap and/or hand sanitizer with at least 60% alcohol, tissues, and no-touch disposal receptacles. Additionally, businesses are advised to encourage social distancing of at least 6 (six) feet for all patrons and employees. Beyond routine cleaning and disinfection, the CDC also recommends cleaning and disinfecting frequently touched objects and surfaces such as telephones, handrails, and doorknobs with surface-appropriate products meeting EPA’s criteria. The CDC guidelines also suggest creative methods such as utilizing partitions on the premises and posters encouraging hand hygiene, as well as increasing ventilation rates. Additionally, it is recommended that your business encourage potentially infected or infected employees to stay home and to then perform enhanced cleaning and disinfecting if a potentially infected or infected person was on the premises.

Beyond compliance with the above guidelines, it is vital for business owners to take clear and strict precautions while reopening. These preventative measures will not only ensure that your business is as safe as possible for patrons but will also aid in defending the business in the case of a potential lawsuit. Bear in mind that if your business creates and publishes protocols, extra care must be taken to ensure compliance with said protocols to protect the business during litigation. In addition to the CDC guidelines, suggested protocols for reopening a business include:

• Regular cleaning and disinfecting with cleaning logs to substantiate consistent cleaning practices.
• Extra cleaning and disinfecting steps for high touch surfaces such as doorknobs, elevator buttons, and any often-touched surfaces with surface-appropriate disinfectants.
• Requiring patrons to wear a mask and refused admittance to anyone not in compliance.
• Limiting the number of patrons inside the establishment at any given time and rearranging the layout where possible to comply with social distancing guidelines at all times.
• If your business sells goods, where possible keep items behind glass or other protective screens only accessible to employees and do not provide to customers unless they plan to purchase the item. Where barriers or screens are not feasible, consider placing signage requesting that customers are selective in handling items and only those they intend to purchase or that they seek assistance from a store employee.

If your business is sued by a third-party, evidence showing your business utilized consistent, reasonable cleaning and disinfecting measures to protect against exposure will be important in the defense of any claim. For example, if a patron sued your business for negligence, a strong defense would include proof of reasonable practices taken by your business to regularly clean and sanitize the entire premises. A plaintiff might even specifically claim failure to inspect or clean areas of potential exposure similar to the plaintiffs who filed Legionnaire’s disease-related lawsuits. As such, it is advised that businesses utilize cleaning/disinfecting logs, surveillance footage, and other methods to establish that your business complied with CDC and other applicable guidance and its own protocols to make the premises as safe as possible, and to limit possible patron exposure to COVID-19 on the premises. Additionally, steps should be taken to preserve these logs and footage so that they can be used as evidence in case of litigation to show that the business met the appropriate standard of care.

Bearing the above hypothetical and legal standards in mind, a business can defend against claims that it did not act reasonably to prevent patron exposure through strong evidence showing consistent and reasonable steps taken to keep patrons as safe as possible. In other words, if your business retains evidence showing consistent steps taken to clean the premises, such evidence will be very useful during litigation to refute an argument that the business breached the standard of care and as a result, caused the third-party to be exposed to COVID-19.

As mentioned above, any plaintiff seeking to bring a cause of action premised on negligence against a business will face a tough burden of ultimately proving causation (that their diagnosis was the result of exposure at this specific establishment due to some act or omission by the business). Plaintiffs would be strenuously questioned on other potential sources of exposure, a timeline of symptoms, and similar areas to raise questions on this issue. Even then businesses could have viable defenses such as assumption of risk (plaintiff was aware of the potential for exposure by entering a public place and willingly did so despite this knowledge) or that plaintiff’s own actions were in part responsible for contracting the disease (sole proximate cause or contributory negligence).

In sum, substantiating that your business followed reasonable guidelines such as those published by the CDC and other governing entities will be vital to defending against a third-party suit. This would include any industry-specific instructions or guidance that may provide targeted directions on sanitation, disinfection, and social distancing. Additionally, businesses should continue to monitor for developments in both federal and state legislation that could provide immunity for general negligence claims to ensure that they comply with any prerequisites for the protection.