So You Want To Reopen Your Business - What Are Your Legal Concerns?

By now, we are all fed up with COVID-19 and the shutdown of businesses across the country.  While this pandemic has affected our lives like nothing else before, businesses are starting to reopen, and hopefully, most will be able to do so by the end of summer.  If you are a business owner, many questions should be coming up:  Will your customers come back?  How will your business be different than it was before the pandemic?  What steps will you need to take to ensure the safety of your customers?  And most importantly, will you be sued by customers who claim they contracted COVID-19 as a result of something you did or failed to do?

Here's a hypothetical to consider: Assume you own a restaurant that has reopened after the lockdown has been lifted. You follow the governmental guidelines on how to clean your store, ensure social distancing of your customers, make sure your employees are not sick, etc. However, a customer dines in your restaurant, and subsequently, maybe days or even a week later, contracts COVID-19. This customer sues your restaurant, arguing that she contracted the virus at your establishment. The theory of the lawsuit would be based on negligence.

A negligence claim is a cause of action brought by someone harmed by another person acting in a careless or negligent manner. Under Pennsylvania law, the customer in the aforementioned hypothetical would have to prove that your restaurant 1) owed the customer a duty to conform to a certain standard of conduct for the protection of its patrons, 2) failed to conform to the standard, 3) there was a causal connection between the conduct and the resulting injury, and 4) the customer suffered actual loss or injury. For example, in the slip and fall case, Slater v. Genuardi's Family Markets, the defendants (Genuardi's) argued the plaintiff (Slater) was not able to prove that Genuardi's failed to conform to the applicable standard of maintaining dry floors, as it was unaware that there was any spill that caused the customer to slip.  As a result, the Court agreed and granted the defendant's motion and dismissed the case against them.

As for the restaurant hypothetical, there would be many obstacles for the customer to prevail in her lawsuit. First, she would have to show that you failed to protect her from foreseeable harm (i.e., COVID-19 contraction). If you follow the government guidelines on social distancing and cleaning your store, and were unaware of anyone employed at your restaurant having COVID-19, you should meet the duty to protect the customer as there would be no foreseeable harm from which you failed to protect the customer. Just as importantly, the customer would have difficulty proving the causal connection between any conduct that she alleges you took or failed to take and her contracting the virus. This would be particularly true with COVID-19, as the virus has a weeks-long incubation period. John Goldberg, a Harvard law professor who specializes in torts, was quoted in a New York Times article stating "€˜Under current law plaintiffs have to prove the target was negligent,' and proof of causation €˜is going to be daunting if not impossible.'" Further, he went on to say, "You never say €˜never' in the world of liability, but the idea this is a looming tidal wave of lawsuits that are going to succeed seems to me overstated."

Therefore, prevailing on a legal theory of negligence will be difficult. However, in the real world, this does not prevent a plaintiff's attorney from filing such a lawsuit. If such a lawsuit is filed, your business should have liability insurance to defend your company. Navigating such novel circumstances, from following the ever-changing governmental guidelines on COVID-19 to what to do in the event that your business is sued to dealing with your insurance carrier, can be daunting. Understanding your legal risks and preparing accordingly can help steer your business through these unchartered waters and onto new horizons.