Liability for a Patron’s Exposure to COVID-19

Can a Plaintiff really sue us if they caught COVID-19 at our business?
Even though COVID-19 is the “novel coronavirus,” attempting to hold a landowner/occupier liable in negligence where a Plaintiff claimed they contracted a communicable disease on their premises is nothing new. In a 1906 Washington State case, a daughter sued the Canadian Pacific Railroad because both she and her mother contracted scarlet fever or “malignant measles”
on a dirty and overcrowded rail car. Hanstad v. Canadian Pac. Ry. Co., 44 Wash. 505, 506, 87 P. 832, 833 (1906). In 1910, Mellody v. Missouri, K. & T. Ry. Co. of Texas, 124 S.W. 702, 702
(Tex. Civ. App. 1910), a railroad employee sued the railroad for becoming blind after contracting smallpox from a child of another railroad employee. Although the concept of a lawsuit arising out of a situation where an individual claims to have contracted some type of illness from an alleged exposure is not new, these lawsuits have not always been successful from a causation standpoint; nonetheless, we see these types of lawsuits in a variety of contexts, and not surprisingly, we anticipate seeing more of them in the wake of COVID-19 despite causation defenses.

How could my business be found negligent?
While the Plaintiff’s inability to prove they contracted COVID-19 at a property will continue to be a prevalent, and perhaps, strong defense for any such claims, health data and contact tracing could provide circumstantial evidence to show that a Plaintiff was exposed to COVID-19 at a particular location. However, before we ever get to the question of whether or not a Plaintiff contracted COVID-19 from an alleged exposure at a particular premises, the question of whether a premises owner owed a duty and breached that duty must first be addressed. It is well settled in Florida that a party that controls a premises can be held liable in negligence to a business invitee where either 1) that party failed to maintain its premises in a reasonably safe condition, or 2) if it failed to warn the Plaintiff of a concealed peril that the party knew or should have known about and which could not be discovered by the Plaintiff through the exercise of ordinary care.

What is the premises owner’s duty to a third party in a time of pandemic?
We anticipate Plaintiffs will find creative ways to argue that a premises owner breached a duty to maintain its premises in a reasonably safe condition, thereby creating (or failing to prevent)
exposure of its patrons to COVID-19. To illustrate, a Plaintiff may allege and might be able to prove that a landowner/occupier failed to follow reasonable CDC recommendations for social distancing. A Plaintiff may be able to allege and prove that a landowner/occupier failed to follow sanitization and cleaning guidelines.

Wal-Mart will still serve customers who refuse to wear masks. As explained in this CNN article, Wal-Mart and other retailers have decided they will not require their employees to enforce their
mask policy for patrons who refuse to wear masks, in order to avoid violent or otherwise uncomfortable confrontations. Accordingly, failure to enforce a mask policy may be yet another way that
a Plaintiff can show that a landowner/occupier failed in its duty to the Plaintiff to maintain its premises in a reasonably safe condition. Of course, even if a Plaintiff is able to prove that either (1)
a landowner/occupier knew an invitee and/or employee was actively infected with COVID-19 and it was transmittable, or (2) the landowner/occupier failed to follow CDC recommendations for
social distancing, cleaning, face coverings, etc., a Plaintiff still has an uphill battle in proving that these breaches in duty caused the Plaintiff’s contraction of COVID-19, or that Plaintiff even contracted COVID-19 while on the particular premises. Moreover, a Plaintiff will inevitably face difficulties prevailing under a theory that the landowner/occupier failed to warn the Plaintiff of a concealed peril, especially in light of the fact that COVID-19 has been deemed a global pandemic, with national and local media attention, making the potential exposure to COVID-19 (arguably) well-known to anyone who has access to a television, radio, internet access, or a casual conversation. Consequently, we find it unlikely that a Plaintiff will be able to prevail on a theory that the landowner/occupier failed to warn the Plaintiff of a concealed peril – though, as we know, this does not prevent or bar a Plaintiff from filing the lawsuit or asserting a claim, which necessitates an open conversation about liability and ways to mitigate same.

To no surprise, one of the primary concerns for business and premises owners as they reopen or continue to operate their respective establishments is simply this: “What can I do to eliminate the risk of liability to patrons for exposure to COVID-19?” While it would be seemingly impossible to eliminate the risk altogether, we would suggest that, from the perspective of litigation attorneys who defend premises liability cases as part of their practice, the question should really be: “What can I do to minimize the risk of liability to patrons for exposure to COVID-19, and how do I do it?”

• Is it a conspicuous sign out front that says ENTER AT YOUR OWN RISK?
• Is it an iPad at the front desk that requires all patrons to agree to waive any claim for liability should the patron contract COVID-19?
• Is it extra language at the bottom of the menu that says that the restaurant is not responsible if a patron contracts COVID-19?
• More importantly, are these mechanisms which attempt to minimize liability enforceable in a court of law?

While it is customary in our society for patrons to sign liability waivers when they visit locations such as rock climbing gyms, go-kart race tracks, shooting ranges, gymnastic studios, etc., it is unusual (and unanticipated) to see a waiver requirement (or request) at our favorite restaurants, bars, shopping malls, or our neighborhood grocery store. Accordingly, in order to analyze whether
COVID-19 related waivers could be effective and enforceable, we have turned to case law governing waivers and their enforceability in the context of other types of establishments for guidance as we navigate unchartered territory arising from the “novel coronavirus.”

A waiver — stated simply – is the knowing relinquishment of a right. Florida courts have held that waivers and other exculpatory clauses are valid and enforceable if the intent to relieve a party of
its own negligence is clear and unequivocal. Banfield v. Louis, 589 So. 2d 441, 444 (Fla. 4th DCA 1991); L. Luria & Sons, Inc. v. Alarmtec Int’l Corp., 384 So. 2d 947 (Fla. 4th DCA 1980). The
test for whether waivers or exculpatory clauses are sufficiently clear is whether the wording is so clear and understandable “that an ordinary and knowledgeable party will know what he contracting away.” Hinely v. Florida Motorcycle Training, Inc., 2011 WL 1815145 (Fla. 1st DCA 2011); Southworth v. McGill, P.A. v. S. Bell Tel. & Tel. Co., 580 So. 2d 628, 634 (Fla. 1st DCA 1991).

Generally speaking, it is an arduous task to create a fool-proof waiver for a patron to sign which would minimize a premises owner’s liability for a patron’s exposure to COVID-19 because clauses or waivers that seek to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability. In other words, any written waiver that seeks to deny a patron that contracts COVID-19 while at their premises the right to recover damages from the restaurant will be interpreted in a light most
favorable to the patron and against the drafter – the business seeking to avoid liability.

What does this mean for premises and business owners?
In simplest of terms, it means that premises and business owners who wish to use waivers to reduce the risk of liability must go to great lengths to ensure that the language of their waivers are clearly written so that the patron understands exactly what rights they are relinquishing.

How is this accomplished in the current climate that is created by COVID-19?

• Make sure the waiver is provided to all patrons before they
  enter the premises (whether it requires a signature or is simply
  posted for all guests to read).
• Use language that is simple and void of overly complicated
  legal terms and overly dense sentences.
• Spell out all of the steps and precautions that your business is
  taking to ensure the safety of its guests.

While these suggestions do not guarantee the enforceability of a waiver, they do provide some guidance as to how to make your guests feel comfortable and secure in executing waivers, which may
ultimately discourage them from asserting a claim should they contract COVID-19 while at your establishment.

In addition to the cursory obstacles associated with ensuring that a waiver can be enforced based on the clear and unequivocal nature of the language used, there are also public policy concerns that create additional hurdles when it comes to enforcing a waiver or exculpatory clause.

Generally speaking, Florida courts disfavor exculpatory contracts commonly referred to as waivers or releases based upon public policy grounds as they shift the risk of injury to the party presumably least equipped to avoid an injury. Sanislo v. Give Kids the World, Inc., 157 So. 2d 256, 260 (Fla. 2015). However, Florida courts recognize the countervailing public policy argument founded in the freedom to contract and will uphold exculpatory clauses when unambiguous and not in contravention of public policy. Id. Perhaps most important in the context of COVID-19, public policy precludes a party from absolving itself from liability via an exculpatory clause when a party commits an intentional tort[1], or fraud, or is required to perform pursuant to a positive statutory duty[2], or the Florida Building Code, and fails to do so. Why is this so important in the context of COVID-19? Premises or business owners cannot absolve themselves of liability via the use of waivers/exculpatory clauses if those premises or business owners are not operating their establishments pursuant to guidelines mandated by local ordinances, statutes, or administrative orders. Consequently, if a restaurant or business owner seeks to one day absolve themselves of liability for a patron who allegedly contracts COVID-19 while at a particular establishment, the manner in which the establishment was operating will be an area of great scrutiny. Therefore, if business or premises owners seeks to utilize waivers to reduce the risk of liability, it is
important that the business and/or premises owners, and their employees, are abiding by all mandates, including but not limited to complying with capacity restrictions, abiding by sanitization
requirements, enforcing social distance guidelines, requiring face coverings, and operating only within those permitted hours.

In short, although steps can be taken to reduce risk for liability to patrons who claim that they contracted COVID-19 while at a particular establishment, it is important to remember there are
inherent and unavoidable risks associated with operating a business during a health pandemic. Moreover, although waivers are an excellent tool that business and premises owners can utilize
to reduce risk of liability, waivers should not be blindly relied upon as a complete insulation from liability. This is not to say waivers should not be used; but rather, this message serves a metaphoric “Proceed with Caution” sign for business and premises owners to not fall prey to the false sense of security that an all encompassing waiver might provide.

The Kubicki Draper team is available to discuss and assist you with these issues.

Maegan Bridwell represents clients in a wide variety of cases, including but not limited to construction defect, premises liability, automobile accidents, intellectual property, and products liability. As part of her practice, Maegan focuses on maintaining a relationship with clients based on trust, communication, and excellent customer service. Maegan is also a member of Kubicki Draper’s Hospitality, Retail, and Premises Practice Group.

Katherine Kmiec handles matters involving first and third party general liability cases including automobile and motorized vehicles and premises, as well as statutory breach of contract cases from pre-suit up through appeal. Katherine is also a member of Kubicki Draper’s Hospitality, Retail, and Premises Practice Group.