Commentary

Does My Business Face Exposure to COVID-19 Litigation?

The following article was recently published in Hallsley Living, and is reposted here with permission.

A question that keeps popping up from my clients is whether their small or medium-sized business faces exposure to COVID-19 damages from customers who claim that they were infected with COVID-19 after visiting. The short answer is no. Here is the reasoning why.

First, there is no precedent for responding to this situation. If a lawyer tells you with absolute certainty how a given court is going to respond to a lawsuit in which Mary Jane sues ABC, LLC for contracting COVID-19 after visiting, that lawyer is over-confident. We live in interesting times. The law is changing. The unprecedented government shutdown of private businesses and the lawsuits in response are going to create new law in the next year that is unpredictable. And yet, some fundamentals of negligence law are very likely to stay the same.

Second, the main problem for a customer trying to bring a COVID-related lawsuit is the element of causation. How is Mary Jane going to prove that she contracted COVID from ABC, LLC and no where else? In the best-case scenario for Mary Jane’s suit, she visited no stores other than ABC, LLC, she lives entirely alone and was unvisited, and she has had zero interactions with anyone for at least fourteen days before visiting ABC, LLC.  Even then, did she get anything in the mail? Were online orders from Amazon or any of other online options delivered? (As of May 21, 2020, BJ’s Wholesale is reporting a 350% increase in online orders year over year and Best Buy a 150% increase.) How will Mary Jane prove she did not pass too closely to someone in the parking lot on the way in to the business? How will Mary Jane prove she did not get it from her groceries? Can she plausibly say she grew all her food in the yard for the duration?  No proof that your business caused the loss means Mary Jane loses. Of course, Mary Jane can probably find an attorney to give it a try and I think these lawsuits will be attempted.  However, there are good reasons to believe such suits will fail.

Third, the law in the Commonwealth of Virginia is that when Mary Jane knowingly put herself in danger of the specific harm she is suing about, she assumed the risk and cannot prevail.  How could anyone not be aware that traveling into a public area, never mind an enclosed business, in this era involves taking the risk of contracting COVID-19? The key to helping make this defense for your business is in not promising that your business is safe from COVID. Make sure any signs you put up do not make promises that you cannot keep.

Do not read this and think, “ABC, LLC has no risk and no burden to act with reasonable care.” Use common sense. A jury is made up of our peers. Those peers have sympathetic hearts and usually zero legal training. ABC, LLC should be following CDC guidelines for cleaning and social distancing (https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html).  They are updated constantly. ABC, LLC should follow any orders lawfully issued by the Commonwealth and the local government authority.

I hope this helps our local business owners understand in broad strokes two of the biggest defenses available to them. As we turn the economy back on there are plenty of things about which to worry.  A personal injury action from a customer of a non-medical business acting in good faith to follow CDC guidelines should not be anywhere near the top of the list.