AS DIFFICULT as the world has become for local restaurants and other locally owned business during the sudden appearance of the novel coronavirus, they are now faced with dilemmas posed by the precipitous announcement of Governor Kemp to open businesses far ahead of even the optimistic guidance of the White House.
Financial concerns, employee reliability, and safety issues, along with precious public perception and goodwill, are unfortunately just the beginning of the equation for these small businesses.
While issues concerning workers’ compensation liability and unemployment compensation for employees who, out of fear of COVID-19, fail to report to work, are newly complex issues that are pending state guidance (Mark Butler, are you listening?), the potentially frightening issue these businesses might not have even speculated on yet is what happens if a member of the public becomes infected with the virus and claims that the business was somehow negligent in the way it opened (or, in fact, opened at all) in defiance of guidance from our best medical and science experts.
It is on this issue where I hope to offer some general guidance as a trial attorney who frequently handles premises liability cases, both for injured consumers and defending small businesses.
Fundamental concepts in matters involving premises liability involve warning the public of known hazards and keeping the premises safe from known hazards.
Those concepts normally involve what is reasonable and customary in the industry. This is sometimes referred to as the duty of care.
There is often competent and stringent guidance from Federal and State agencies and regulatory boards on things like food safety, lighting and hygiene (think hair salons). In the case of dealing with a viral pandemic of the sort not experienced since 1918/1919, (no, Mr. Trump, “ 1917” was a movie) however, defining the standards that will demonstrate proper care will prove far more elusive.
So, what are the standards in the absence of formal regulation? Is it the standard set out by the Trump Administration (the three-step opening AFTER qualifying and passing through the gateway of two weeks of viral decline)?
If so, then where does that leave a business who follows the lead of the Georgia Governor whose opening blew through that flashing red light?
Is a Governor’s 11th hour guidance by decree without agency-level enforcement mechanisms a valid attempt to set reliable and legally relevant standards ? Or is it the standards set by the CDC thru eminent science that must be abided?
This is particularly troubling in areas where State Regulatory Agencies have offered no specific guidance other than the vaguest references to social distancing and sanitation measures.
The first formal state guidance in Georgia was presented in an April 8th Executive Order on long-term care facilities. It references:
• Adhering to CDC and DPH guidance
• Adopting an emergency plan
• Requiring frequent hand washing by employees
• Use of 70% isopropyl alcohol hand sanitizer (assuming you can find it)
• Establishing social distancing protocols for workers and customers
• Implementing reporting mechanisms for those symptomatic or potentially exposed, and Requiring 14-day self-quarantine for workers exposed or symptomatic
Nothing was then offered in the way of guidance as to temperature taking, use of masks by employees or customers or even as to what level of social distancing is deemed appropriate.
The Governor’s 26-page decree issued late on April 23rd is more specific but it creates no agency-level enforcement mechanism instead relying on local law enforcement and does not address the potential civil liability for non-compliance.
This is not to say that a later-infected customer/client who visits an open establishment not following what some Court or Agency or Decree deems as reasonable and necessary precautions has an easy case to make.
First, one issue that arises in premises liability cases is that of superior knowledge. In other words, if the customer is equally aware of the risks, under Georgia law they cannot recover.
At the same time, though, the customer has a right to presume (a lawyer would argue) that the business was following basic safety protocol WHEN THEY WALKED IN.
If the customer later discovers that basic precautions were ignored, it may be too late for the business owner to claim that the customer was equally aware of the risk. As a customer, it is simply hard to avoid a hazard you cannot see or appreciate (like a server with a fever).
More importantly, however, despite the amazing advances in contact tracing, it might be difficult ( but not impossible ) for a virus victim to prove their infection resulted from a specific place and time of exposure. Under our laws, that would certainly be their legal burden.
To prevail, an infected customer must show he or she did not have the virus before visiting the business. That plaintiff also would have to prove they had no contact with anyone or any shared spaces from the time they left home to the time they reached the establishment. Cruise lines, however, have had to pay large judgments even in the face of these hurdles in cases involving noroviruses.
I had a business client ask me once: “How can I keep from getting sued?” My answer was, if you do business in America, you CAN’T.
People sue; it’s our communal reality. The better question I told her is to ask your lawyer “How can I avoid losing or paying a big settlement if I DO get sued?” That is the proper question.
My personal thoughts to businesses seeking to open is that, at minimum, they should follow CDC Guidance and that of the Federal Administration response agencies. Certainly, the Governor’s last-minute decree is relevant as well.
Practically, I think this includes providing masks to employees and customers (who don’t have them), temperature checks, and ensuring employees and customers are adhering to social distancing guidelines (even if customers have to wait outside, monitor that they too are observing 6’ social distancing as well).
For businesses like gyms, salons, bowling alleys and theatres, waivers might be considered as well, but I am still finding it hard to imagine how such a business keeps kids from running around and interacting in these environments.
One other small business client asked “Can’t the Governor (or the State of Georgia) indemnify us if we get sued because of their recklessly jumping the gun?”
The short answer is NO. The doctrine of Sovereign Immunity is quite strong in our State and the only real remedy is the ballot box.
The most fundamental thing any business contemplating opening soon MUST do is to contact their liability insurance company. Make sure you are adequately covered in case the unthinkable happens.
Good Luck & Good Health!