What will COVID-19 Liability Litigation Look Like for Consumer Facing Businesses?

The short answer is, no one knows right now because the issues arising from COVID-19 are extraordinarily rare and distinguishable from more typical claims against retail, restaurants, and similar consumer facing businesses. For example, when a patron experiences a slip and fall accident, food poisoning, a hot entrée or beverage spill, or even drinks a beer from an improperly cleaned tap line, the event, the cause and/or the result are usually temporal. Even with something like e-coli, the result and diagnosis happen relatively quickly, even if the cause of the contamination is not discovered for weeks or months. COVID-19, however, poses unique challenges because it can be transmitted by an asymptomatic person to a person who does not show signs of COVID-19 for up to two weeks. As a result, while we expect claims will be made by patrons who develop COVID-19 as the economy is reopened, we anticipate that there will be significant issues of proof and methods by which businesses can take proactive steps to lessen both the chance of litigation and the chance of losing that litigation.

Proof of Fault/Defenses

• The immunity statutes that are currently being debated in some statehouses (e.g., Utah and Florida) and that may be debated in others, may dictate the level of proof required for liability. For example, an injured patron may be required to allege and prove gross negligence or recklessness. What type of conduct will suffice? It will take time for courts to provide guidance about whether, for example, a single employee failing to wear a mask constitutes negligence or gross negligence, or if more serious conduct is required. Failure to confirm the health of employees (through instructions to stay home if symptomatic and temperature checks) could be sufficient to give rise to liability.
• If the immunity statutes are not passed or are not passed in a particular state, liability will likely be based on a typical negligence, which measures whether the business owner acted reasonably.
• Under either scenario above, the best evidence of acting reasonably is for businesses to comply with best practice recommendations issued by governmental authorities, including the state and federal Centers for Disease Control and Protection or their equivalents. Demonstrating and documenting compliance with these types of requirements can help prevent or defend claims. Using a checklist that shows consistent adherence to the requirements gives the business owner or manager a level of comfort that the guidelines are being followed and may provide a good defense in the case of a lawsuit. Taking precautions that exceed the recommendations would offer a very strong defense.

Causation

• Plaintiffs will need to establish causation, or a connection between the negligence that they are alleging and their own exposure and illness. For example, if the breach in protocol occurred when one bus boy failed to wear a mask, will a plaintiff be able to conclusively demonstrate that he caused their infection?
• It is possible for a person to have COVID-19 and not exhibit symptoms at all. This asymptomatic carrier can unknowingly infect many others. In the absence of broad testing, that individual may never find out that they are positive, or may only learn through antibody testing at a later date. It may be impossible for a plaintiff infected in this manner to prove causation, particularly if the timing of the asymptomatic infection cannot be identified.
• Patrons may also need to eliminate other possible exposures to prove causation. DNA sequencing of infections has been used for epidemiological research, to track the geographical spread of the virus, but it is unclear whether it can work with sufficient specificity to track a case to a particular contact.
• Elimination of other potential exposures may not be necessary if a cluster of cases is discovered. In other words, if 100 other people all went to the same business (along with various other exposures), but the only tie those 100 people have to each other is the same business and there are no clusters from their other exposures, it is possible that a judge would find that to be sufficient evidence to get to a jury. As contact tracing gets more sophisticated, it is likely that causation will be easier to prove, particularly if clusters of outbreaks form.

Damages

• COVID-19 has a very wide range of impacts on patients, including death. It is possible that judges and juries will be turned off by overreaching plaintiffs who bring claims after experiencing a mild case, as compared to weeks of hospitalization and intubation or death. As a result, and given the challenges in proving causation, it is expected that COVID-19 litigation will primarily only be brought in cases involving significant adverse outcomes.
• The long term consequences of COVID-19 are unknown and the subject of ongoing research. Will experts be able to assert that there is a shortened life expectancy, or likelihood of further physical consequences, even though such long-term observational research will not be possible for a number of years?
• Given the litigious climate in which we live, some people may file claims seeking to recover solely for the emotional distress of a known exposure, even without resulting illness. Both courts and juries may be skeptical of such claims, given the widespread risk of exposure and in some jurisdictions, there are obstacles to recovery based solely on emotional distress.

In the end, while we see a certain inevitability of COVID-19 related claims, and know that some have already been filed in a few jurisdictions, there are many pitfalls for both patrons bringing these claims and businesses defending against them. The contours of such litigation will take some time to clarify. In addition, there are legislative efforts underway at state and federal levels to create a limited immunity shield for public facing businesses.

Even if limited immunity shields are enacted, we do not anticipate that these legislative protections will eliminate litigation entirely. Any legislation of this nature will likely include an exception for gross negligence or reckless behavior. For a business owner, the best course to manage this risk is to comply with best practices recommendations and document, through checklists or other record keeping, that the business consistently complies with those best practices. Doing so may provide either immunity from suit, or a strong defense, even if an exposure and transmission does occur. Please contact Verrill’s COVID-19 Response Team for guidance on risk management, or if you become the target of a claim.