Businesses that re-open to the public could potentially find themselves facing premises liability claims from customers who allege that they contracted COVID-19 on the premises due to the business's negligence. We have already described in a previous update ways in which the risk can be mitigated by a business implementing relevant CDC and state and local public health authority guidelines to demonstrate that the required standard of care has been met. Relying on compliance with mandatory and recommended guidelines is, however, not the only available defense.

A plaintiff seeking to hold a business liable for negligence must not only establish that the business breached a duty, but must also show that there is a causal connection between the breach and the plaintiff's injury (in this case, exposure to COVID-19). See, e.g., Friedman v. Anderson, 23 A.D.3d 163, 164, 803 N.Y.S.2d 514, 515 (2005). The plaintiff bears the burden of proof, and therefore must develop admissible evidence sufficient to conclude that it is more likely than not that the plaintiff was exposed to COVID-19 at that particular business, as opposed to anywhere else. See, e.g., Brightman v. Hackett, 81 A.D.3d 1200, 1201, 917 N.Y.S.2d 730, 732 (2011) (recognizing that plaintiff bears burden to establish each element of a negligence claim "by a preponderance of the evidence").

The very nature of COVID-19 presents a challenge for plaintiffs in premises liability cases because of the lengthy incubation period between exposure and the development of symptoms. Even if a plaintiff has been scrupulously following "stay at home" orders, it will be difficult for the plaintiff to pinpoint exactly where and when the exposure occurred and, thus, who should be named as a defendant. Given a natural tendency to look for "deep pockets" this could lead to plaintiffs filing suit against what they perceive to be the largest or most successful businesses they visited in the two weeks before the onset of symptoms.

Once a plaintiff identifies a potential defendant, the plaintiff must then develop evidence that the exposure occurred on that defendant's premises, rather than somewhere else. If the business has developed, implemented, and enforced policies and procedures to comply with public health guidelines, this could permit the assertion of two substantial defenses to the claim. First, as we've discussed in a previous update, following all applicable guidelines can help show that the business fulfilled its duty to maintain the premises in a reasonably safe condition. Second, even imperfect or imperfectly documented adherence can help the business call into question the plaintiff's evidence of causation.

Indeed, so far we have focused on the business's approach to minimizing its risk of liability, but a plaintiff's own conduct can be expected to play a central role on the causation element. During the course of litigation, the defendant-business should learn all it can about the plaintiff's own activities around the time of alleged exposure. A plaintiff's social media accounts and text messaging records can provide powerful evidence of the plaintiff's daily activities during the incubation period. A plaintiff who has not been following public health guidelines by, for example, not maintaining social distance, failing to use a face mask, congregating with others, or making nonessential trips outside the home, will find it difficult to prove that he or she contracted COVID-19 on the business's premises. Similarly, evidence that the plaintiff had been going to work or taking any form of shared or public transportation can also undermine the causal link between the plaintiff's visit to the business's premises and contraction of COVID-19.

Also, as technology develops and becomes more accessible we may see businesses attempt to identify and compare the particular strain of COVID-19 that infected the plaintiff to any strain present on the premises to try to defeat causation. While a plaintiff may see little benefit in investigating which strain was present on the premises, there would be risks and benefits for a business defending a claim to consider when evaluating whether to do so itself. If the business is unable to document full compliance with public health guidelines and defeat a claim on the ground that it satisfied any duty owed the plaintiff, confirming that a plaintiff did not come down with the strain present at the business could end a case that might otherwise prove problematic.

Finally, in an attempt to paper over weaknesses in their evidence of causation, plaintiffs may attempt to rely on the legal doctrine of res ipsa loquitur to establish negligence. Generally, res ipsa loquitur "permits a trier of fact to draw an inference of negligence in the absence of a finding of a specific cause of the occurrence when an accident is of the kind that does not ordinarily happen unless the defendant was negligent in some respect and other responsible causes including conduct of the plaintiff are sufficiently eliminated by the evidence." Enrich v. Windmere Corp., 416 Mass. 83, 88 (1993). To apply the doctrine, a "jury must be able to find, either by expert evidence or by their own common knowledge, that the mere occurrence of the accident shows negligence as a cause." Id. Based on the unknowns still remaining about the coronavirus and its transmission, along with the myriad ways that a plaintiff could catch it from a source other than by entering onto the defendant business's premises, it seems unlikely that a court would be willing to apply the res ipsa loquitur doctrine to hold a defendant liable for exposure to COVID-19 in the absence of evidence of a direct causal link. See, e.g., J.E. v. Beth Israel Hosp., 295 A.D.2d 281, 284, 744 N.Y.S.2d 166, 170 (2002) (holding that "where there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which defendant was responsible"). Nevertheless, businesses should not be surprised to see it raised in litigation, and should be prepared to respond with evidence suggesting that a plaintiff could have been exposed at any one of a number of places other than the premises.

Article originally published on 4 June 2020

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