As many jurisdictions prepare to end or relax their “shelter-in-place” orders, many business owners are facing questions of how they will return to some sense of normalcy while recovering from the economic downturn due to the COVID-19 pandemic. These questions include concerns regarding claims by customers alleging that they contracted coronavirus as a result of entering a business owner’s premises. 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, as there was no precedent set by the last pandemic scare: SARS.

SARS vs. COVID-19

At the close of the SARS crisis in summer 2003, the CDC reported approximately 8,098 persons worldwide were diagnosed with SARS and 774 deaths. Afterward, business owners saw little to no claims filed by customers alleging negligence due to contracting SARS.

If any business owners were looking hopefully to SARS as a precedent, they likely have reconsidered it by now. As of the date of this alert, the WHO has reported approximately three million confirmed cases and over 200,000 deaths worldwide. In the United States alone, the WHO has reported nearly one million confirmed cases and over 55,000 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.

Current Overview of COVID-19 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.

Similar claims may likely begin to appear against business owners and insurance companies as jurisdictions begin to reopen their doors to the general population. While these claims mirror modern day premises liability claims, business owners and insurers must take precautions to mitigate the risks associated with COVID-19 claims.

Looking Back

History shows a strand of cases regarding liability for the transmission of communicable diseases. (Smith v. Baker, 20 F. 709 (C.C.S.D.N.Y.1884) (whooping cough); Capelouto v. Kaiser Found. Hosp., 7 Cal.3d 889, 500 P.2d 880, 103 Cal.Rptr. 856 (1972) (salmonellosis); Hofmann v. Blackmon, 241 So.2d 752 (Fla.Dist.Ct.App.1970) (tuberculosis)). However, in recent years, the courts have only assessed liability to individuals negligently transmitting sexually transmitted diseases. (Duke v. Housen, 589 P.2d 334 (Wyo.), cert. denied, 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86 (1979) (gonorrhea); Reinke v. Lenchitz, 537 N.E. 2d 709 (Ohio Ct.App. 1988) (herpes); Meany v. Meany, 639 So. 2d 229 (La. 1994) (venereal disease)). This transition of liability does not automatically place business owners in the clear because courts have found business owners liable for the transmission of communicable diseases due to pollutants. (Crim v. International Harvester Co., 646 F.2d 161 (5th Cir.1981) (valley fever)).

The pollutant cases are quite analogous to the potential COVID-19 claims. To recover, a plaintiff must show that:

  1. The business had a duty to reasonably protect the plaintiff from contracting COVID-19;
  2. The business breached that duty;
  3. The business was the cause in fact of the plaintiff contracting COVID-19; and
  4. The plaintiff suffered damages

While it is likely that a customer will contract COVID-19 after the “shelter-in-place” orders are lifted, the customer may have a difficult time identifying the business as the source of the illness. Even if the customer identifies the subject business, the customer will have the difficult task of proving that the business had actual or constructive notice of COVID-19’s presence on the subject premises. 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

Despite recent lobbying efforts, there is no current legislation enacted by Congress to provide immunity to business owners from COVID-19 related claims. Simultaneously, there is no way to completely prevent customers from racing to the courthouse to file claims related to contracting COVID-19.

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