Reeling from months of governmental orders that required all restaurants to close their doors, Chez Quis was elated to re-open and welcome back its diners, even at a reduced capacity. But elation quickly turned to despair when Chez Quis learned that one of its longtime customers, Abe Froman, had sued the restaurant for allegedly contracting the coronavirus (COVID-19) while dining there. Has Chez Quis jumped out of the frying pan and into the fire?
This scenario has been weighing on the minds of companies that are eager to resume their businesses but wary of the potential liability if their customers, guests, employees or vendors contract COVID-19 while on their property. This post addresses the proposed federal legislation to limit companies’ liability, the risks under current Texas law and the practical steps that businesses can take to protect themselves.
Proposed Federal Liability Shield
On July 27, Senators McConnell and Cornyn unveiled the “SAFE TO WORK Act,” which would limit liability for “coronavirus exposure actions.” A “coronavirus exposure action” is defined as any lawsuit brought by a plaintiff alleging that an actual, alleged, feared, or potential for exposure to COVID-19 caused either personal injury or a risk of personal injury. Under the proposed legislation, the plaintiff must prove, by clear and convincing evidence, that:
- The defendant “was not making reasonable efforts in light of all the circumstances to comply with the applicable governmental standards and guidance in effect at the time of the actual, alleged, feared, or potential for exposure to coronavirus;”
- The defendant engaged in gross negligence or willful misconduct that caused the accidental exposure to COVID-19; and
- Actual exposure to COVID-19 caused the plaintiff’s personal injuries.
The proposed legislation would also limit the plaintiff’s recovery to his economic damages, unless the defendant engaged in willful misconduct.
Risks Under Existing Texas Law
While the SAFE TO WORK Act would provide significant protection to businesses, passage of the Act (at least in its current form) is uncertain. It has received a mixed reaction from Senate Republicans and drawn criticism from Congressional Democrats. So what are risks under existing Texas law?
As discussed in my recent article, the claim that companies are most likely to face is one for premises liability. Premises liability applies when a person’s injury is due to a dangerous condition on the property, as opposed to contemporaneous negligent activity. Think of a customer slipping and falling on a wet floor. Under Texas law, companies owe a duty of ca
re to all visitors on their property; the extent of that duty depends on the visitor’s status. But even when the duty of care is at its highest, visitors who were infected with COVID-19 face several obstacles to recovery.
First, whether companies even owe a duty to reduce or eliminate their risk of catching COVID-19 is an open question. As a general rule, a person has no duty to aid or protect another from harm caused by a third party. While the Texas Supreme Court has recognized a few exceptions, none apply to person who inadvertently spreads a disease.
Texas courts may also decide not to impose a duty, because the risk of contracting COVID-19 is open and obvious at all. “When [visitors] are aware of dangerous premises conditions—whether because the danger is obvious or because the landowner provided an adequate warning—the condition will, in most cases, no longer pose an unreasonable risk because the law presumes that [visitors] will take reasonable measures to protect themselves against known risks, which may include a decision not to accept the invitation to enter the landowner’s premises.” For example, Texas courts have held that property owners owed no duty to warn about the risks of slipping on a patch of ice or sitting on a cliff’s edge.
Second, even if property owners owe a duty, visitors will likely have difficulty proving that the breach of that duty proximately caused their injuries. There is a lengthy incubation period (up to 14 days) between exposure to the virus and the development of symptoms. Even if the visitor had been scrupulously following the shelter-in-place orders, it will be difficult for him to pinpoint exactly when and where he was exposed to the virus and, thus, who is responsible.
Third, the company can assert that the visitor’s own choices caused or contributed to causing the COVID-19 infection. Although the common law defense of assumption of the risk no longer exists in Texas, the same concept remain relevant under Texas’s Proportionate-Responsibility Statute. The visitor’s recovery may be reduced by demonstrating that he bore some portion of the responsibility for catching COVID-19. The visitor may be precluded from recovering at all if the jury finds that he bore more than 50% of the responsibility. The company will have a strong argument that the visitor is at fault if he did not comply with the governmental regulations and public-health guidelines (including not wearing a facemask).
Titling the Scales in Your Favor
Although persons asserting premises-liability claims based on COVID-19 infections face considerable challenges, companies can take steps to further reduce their risk of liability. First and foremost, they should adhere to any regulations by the state or local government, as well as the guidance published by the Centers for Disease Control. If the courts do impose a duty on property owners to reduce or eliminate the risk of catching COVID-19, they may find that violating the applicable regulations and guidelines was negligence per se, that is, conclusive proof that the owner did not exercise reasonable care. Among other measures, companies should consider:
- Performing temperature screenings on any persons entering the premises and denying access to those running a fever;
- Sending home any employees who have symptoms, reside with a person showing symptoms, or have recently travelled to areas with outbreaks;
- Requiring all persons entering the premises to wear face coverings;
- Requiring and facilitating social distancing by all persons present on the premises;
- Promoting good hygiene and sanitation practices; and
- Posting displays emphasizing the risk of contracting COVID-19 and stating the required and recommended safety measures.
Companies should also adopt a compliance policy that will allow them to verify and document that they are complying with those regulations and guidelines. Those regulations and guidelines are periodically updated, so companies should designate a point persons to monitor any revisions and ensure that they are promptly implemented.
Additionally, companies should consider having all visitors (if feasible) sign a release in exchange for permission to access the premises. So long as certain criteria are satisfied, releases that relieve a party in advance of liability for its own negligence are enforceable under Texas law, and an effective release is “an absolute bar to any right of action on the released matter.” Consult with an attorney to ensure that the release for your business complies with Texas law.