The uncertain landscape faced by thousands of small business owners in Georgia got a new wrinkle last week when Georgia’s governor announced that many “non-essential” businesses ordered shuttered during the pendency of the shelter-in-place order would be permitted to reopen.
Along with questions regarding best practices to protect employees and staff when businesses reopen their physical premises, we have been asked whether the business may be exposed to potential legal liability if a customer claims to have contracted a COVID-19 infection during a visit to the store, shop, or restaurant.
The short answer to whether a business can be named in a lawsuit for exposing a customer to the disease is “Yes.” There is currently no barrier to a customer bringing a claim against a business, or any property owner, when the customer sustains an injury while visiting the premises. However, the question of whether a customer is likely to win the claim is more complicated. In that regard, there are steps a business owner can take to lessen the likelihood of a successful claim.
Duty, Breach, Causation, Damages
Most claims for negligence that are asserted under Georgia law have four elements: Duty, Breach, Causation, and Damages. In order to state a claim for negligence, a customer must allege that the business owed him a duty, breached that duty, that the breach of duty caused him harm, and that he suffered damages as a result.
Causation is the element that will likely be the most difficult for would-be plaintiffs to meet. Because COVID-19 is known to be easily transmitted and highly contagious, the customer asserting the claim will have to show that she contracted the virus at your place of business, not anywhere else. However, there is a strong presumption under Georgia law that the question of whether a business’s negligence caused an injury is one for the jury. And as a practical matter, a business owner has little control over whether a virus exposure at their business actually causes a customer to become infected. If there were a way to absolutely prevent asymptomatic transmission, a shelter-in-place order would never have been needed.
Control What You Can
In contrast to the causation issue, business owners have much greater control over the duty and breach of duty elements of the claim. There has been no clear direction from OSHA or the GA Department of Labor regarding the steps employers must take to protect employees and customers in contexts such as retail and restaurants. Unless we see rules and regulations from the state and federal government, the standard will likely be whether the business owner took reasonable steps to protect employees and customers. To meet that standard, businesses should prepare common-sense policies regarding disinfection of high-touch surfaces, masks for the use of employees who are interacting with customers, handwashing, etc., in line with the preliminary guidance the CDC has provided for businesses. Once policies have been developed and (importantly!) documented, businesses should train their work force on these policies before opening up to the public. A business may also choose to post a notice on its doors describing the protective measures that are being taken, and affirmatively stating that the business cannot guarantee that customers entering the premises will not be exposed to the virus. Giving customers the ability to make an informed decision, when combined with reasonable efforts to minimize risk of exposure, is likely to make the business a less attractive target for a lawsuit.
Anticipate Risks and Consult With Others
These suggestions cannot ensure that a business is not sued by a customer, but thinking about and implementing reasonable policies to protect employees and patrons should allow the business to refute the assertion that customers were subjected to an unreasonable risk of harm. Consulting with industry peers and legal counsel regarding the exposures and risks inherent in reopening a specific business provides an additional layer of protection by demonstrating that the business had an objective basis to believe that the precautions were reasonable and effective.