In the United States, it is immensely difficult to prevent a lawsuit by an individual who feels aggrieved and wishes to sue, particularly when they can do so with little or no out-of-pocket expense. But it is good business practice in uncertain times to anticipate the possibility of lawsuits and to take reasonable steps to mitigate the risk of such suits when filed.

The current pandemic has transformed this logic into an imperative.

As states and local governments begin to allow the reopening of businesses locked down for weeks or even months, we are likely to new spikes of COVID-19 infections. People will continue to get sick. And an organized plaintiffs’ lawyers bar will flood the media with ads encouraging many to sue the place where they can claim to have contracted the virus.

Businesses serving the public and seeking to reopen while the coronavirus contagion lingers should consider and implement a litigation risk mitigation strategy as they reemerge.

The Limits of Civil ‘Immunity’

As of this writing, there are discussions at the federal and state levels about legislation conferring immunity from civil lawsuits on businesses operating amid the COVID-19 pandemic.

Thus far, there has been substantial opposition to such legislation by the plaintiffs’ bar and even if immunity legislation is passed, it is far from clear whether – and to what extent – such legislation would protect against claims by business visitors to a company’s premises.[1]

Although states apply varying rules and interpretations, the basic theme of premises owner liability to business visitors can be summarized in a three-prong test. To establish a claim for injuries caused by an unsafe condition, a plaintiff must demonstrate that the injury was caused by a condition that the business:

(1) knows or by the exercise of reasonable care would discover, and should realize that it involves an unreasonable risk of harm to such visitors;
(2) should expect that visitors would not discover or realize the danger, or would fail to protect themselves against it; and
(3) fails to exercise reasonable care to protect them against the danger.

The steady stream of information about the disease – and the effective means of protecting against it in public settings – has evolved over time.

Daily news reports focus on the number of COVID-19 cases, emphasizing the number of reported deaths resulting from the disease. Governmental authorities and other experts have been advising, recommending, demanding and often mandating that businesses either remain closed or undertake certain generalized precautions, such as social distancing and the use of face coverings.

An Uncertain Course

Since the onset of the pandemic in the United States, health safety information has been inconsistent, ill-timed and sometimes contradictory. Even as government officials allow the opening of business, it is usually on the condition that the business protect employees, customers and all others who enter the business premises. The grant of conditional authority to reopen business overtly puts the responsibility for safe premises directly on the business owner.

Against this backdrop, businesses face an uncertain course in navigating the reopening operations while keeping the public safe from a contagion.

In the event of a lawsuit by a customer claiming injury as a result of exposure to COVID-19 virus at a business premises, plaintiffs’ case will proceed on the following theories even if unsupported by the applicable law: 1) business owners have a duty to remove and to eradicate any and all traces of any danger, including contagious viruses, on their premises at all times; 2) claimant was helpless to protect against this unseen killer; and 3) no matter what steps a business took to protect claimants, they were never enough.

Applying this strict liability standard, few defendants could likely prevail. Fortunately, however, the standard in most states is not strict liability, as the plaintiffs’ side would desire, but instead hinges on whether the defendant acted reasonably in the face of a known and knowable harm. Claimants will also be hard-pressed to argue credibly that they were unaware of or did not realize the possibility or risk of harmful COVID-19 infection in public spaces.

Risk Mitigation Strategies

Litigation risk mitigation strategies require an analysis of the specific details of any business operation, but there are several broader reasonability considerations that all operations seeking to reopen in the current regulatory and litigation environment should heed.

Employees and Staff
In the reopening process, the health and safety of employees and staff are paramount. Once again, governmental and expert guidelines and advice are replete with buzzwords that easily defy practical application, but employees and staff are the people who are the first and sometimes only means of protecting business visitors. They will carry out whatever protective measures are to be undertaken, they are the best witnesses to a business’s reasonable measures to protect against an unreasonable risk of harm, and they are in the best position to counter claims of unreasonable or inadequate conduct.

Cleaning
Although obvious, a meaningful program of cleaning and sanitation to remove traces of the virus from places where it may be transmitted to customers is necessary. Just as importantly, a reasonable cleaning and sanitation program should be concise and clear. Careful consideration should be given to how the procedure is communicated to employees or others. Responsibility, consistency and effectiveness are keys to a reasonable cleaning regimen. Moreover, compliance with the cleaning process should be recorded by making and by retaining an ongoing and accurate log of the timing and fact of any and all cleaning and sanitation efforts.

Warnings
Although driven by a wide variety of considerations on a case-by-case basis, businesses serving the public may wish to consider the posting of written warnings alerting customers and visitors of the possible presence of a contagion, noting in general the steps that the business has taken to protect everyone on the premises, and requesting that business visitors observe reasonable precautions to avoid exposures to themselves or others. There is no one-size-fits-all template for warnings, but the shared theme of all should be that the business is reasonably attempting to accommodate the business visitor’s ability to protect themselves within the premises.

Compliance with Government Regulations and Recommendations
As noted above, governmental decrees and expert advice on health safety measures deemed necessary to respond to concerns about COVID-19 are sometimes difficult to decipher and even more difficult to apply to real-life situations and challenges confronted by individual business operations. For litigation risk mitigation purposes, how a business observes the guidelines is a tricky thing, particularly because they seem to be in constant flux. Indeed, in some states, the rules and guidelines are so ambiguous and convoluted that many business owners have decided to stay closed. Nevertheless, for any business deciding to open, it is important to develop a reasonable, straightforward compliance plan that is in place and implemented at the time of reopening. It is perhaps even more important to keep abreast of guideline developments and to be flexible to update plans as circumstances evolve. Finally, all plans and updates should be communicated frequently and openly with employees, staff and, where appropriate, business visitors.

Alternate Business Delivery Services
One way to avoid business visitor premises liability is to avoid visitors’ contact with the premises. If feasible, businesses that reopen during the pandemic should consider alternative methods of delivering goods or services, including delivery or curb-side pick-up. Even if these services are not common or popular in the business’s industry, those later claiming to have been exposed to the virus on premises will need to explain why they did not avail themselves of an alternative to in-person exposure on premises.

[1] For a discussion of North Carolina’s civil liability immunity statute, and its limitations, see Fox Rothschild Alert, Jeffrey MacHarg, North Carolina Law Provides Immunity to Certain Businesses Against COVID-19 Contraction Claims, May 8, 2020.

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