With businesses continuing to reopen, one critical concern is the potential for liability if individuals become severely ill or die from a COVID-19 infection after frequenting the business. Personal injury and wrongful death claims based on COVID-19 are already being filed against businesses across the country.
To help you take steps to reduce risk and defend, here is a summary of the elements of a typical negligence or wrongful death claim that a plaintiff might bring.
Duty of Care. Liability for personal injury or death arises when a party had a duty of care to an individual, failed to reasonably exercise that care, and that failure of care caused an injury or death. Similarly, premises liability arises when an injury is caused by an unsafe condition on someone's property that the property owner knew or should have known presented a risk of injury to visitors. Generally, a property owner owes a duty of care to all visitors on its property, including licensees (those who give a financial benefit to the owner such as customers), and invitees (those who are not expected to give a financial benefit to the owner such as a party guest).
Causation. Typically, the legal standard for personal injury is whether the injury was more likely than not caused by the alleged breach of duty. In other words, a plaintiff would need to prove that it is more likely that they contracted COVID-19 by exposure to the virus on the business's premises than some other way, as well as that additional reasonable safety measures would have made infection less likely. The lengthy incubation period for COVID-19 as well as an asymptomatic individual's ability to infect others poses potential obstacles to a plaintiff's ability to prove causation.
Damages. Generally, when an employee suffers injuries in the workplace, their exclusive remedy is through the states' workers' compensation systems. However, the scope of workers' compensation coverage, and exceptions to workers' compensation statutes vary by state. In California, for example, exclusivity does not apply where the plaintiff shows the employer knew of the plaintiff's work-related injury, the employer concealed the knowledge from the plaintiff, and the injury was aggravated as a result of the concealment. In that case, the employer's liability is limited to those damages caused by the aggravation. Workers compensation does not apply to customers or guests.
It remains unclear how COVID-19 personal injury and wrongful deal cases will play out, including whether businesses owe a duty of care to protect employees and customers from COIVD-19, what precautions are reasonable, and how plaintiffs will prove causation.
To best protect your business from liability, stay up-to-date on government-issued regulations and advisories and follow the guidance. (For example, we have covered the guidance for New York film and television producers here, and for California film and television producers here and here. We will continue to monitor further regulations and guidelines issued by the government, and public health organizations, as well as litigation arising from COVID-19 infections, and update our clients with new developments.
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.
