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Businesses Eager to Reopen but Worried of Torts to Follow

Let’s face it. COVID-19 has affected many businesses throughout Virginia in some manner – whether it’s mandatory employee work from home policies, suppliers unable to fill orders, or customer concerns about returning to business establishments. If that wasn’t enough, as businesses start to re-open to the public, business owners are now worried about a new problem: coronavirus-related lawsuits. 

Certain industries have already been targeted for COVID-19 liability, including cruise lines and nursing homes, but now even smaller companies fear tort liability. Business owners want to know if, and how, lawmakers will limit the scope of litigation claims to protect businesses. In fact, the looming wave of torts prompted an inquiry from the National Association of Manufacturers and several other trade groups, which asked House and Senate leaders to enact “limited and rational safe harbors” that would curtail any “misguided litigation.” Whether the liability shield will be accomplished through executive order or regulatory changes, or through legislation is still undecided.  https://www.courthousenews.com/businesses-eager-to-reopen-but-worried-of-torts-to-follow/.

Plaintiff’s lawyers are prepared and ready to bring lawsuits over personal injuries and deaths related to COVID-19 exposure. With many Virginia businesses reopening to the public, it is important for businesses to understand how a customer could assert a potential COVID-19 claim and to also understand how to mitigate risk exposure.

Many personal injury claims are based on a theory called negligence. Negligence means that a person or a business did not use ordinary care under the circumstances to prevent a harm. Ordinary care is the care a reasonable person would have used under the circumstances. In the context of COVID-19, we anticipate these actions will fall under a premises liability theory.  Premises liability is the theory that a property owner is liable for accidents and injuries that occur on their property. In Virginia, an invitee, or a business owner, has an increased or heightened duty to maintain the premises in a reasonably safe condition. This includes a duty to inspect the premises and to warn of any hidden dangers. Plaintiff will have to prove the property owner owed a duty to conform to a specific standard of care (more about this in a minute), the property owner breached that duty by falling below the standard of care, causation, and damages. 

The standard of care to be applied in COVID-19 claims will be crucial. Plaintiff will likely use CDC, OSHA, state, and/or local guidelines to establish the appropriate standard of care. For example, currently, the CDC guidelines recommend employers to promote healthy hygiene practices, to intensify cleaning, disinfection, and ventilation, and to encourage social distancing, and telework. For instance, if an employer knows his employee has COVID-19 but allows the employee to come to work because  the employer needs help, plaintiff could probably show the business breached its duty of care. 

In order to establish causation, plaintiff must show that the business owner’s acts, or omissions caused the injury and the plaintiff must additionally trace COVID exposure to the business. Considering the incubation period of COVID-19, which can be up to 14 days, it is anticipated that an expert will be needed to show the point of time in which the exposure occurred. 

Recoverable damages include medical expenses, lost wages, out of pocket expenses for medical and prescription drugs, severe physical pain and suffering, and in certain cases of death, plaintiff’s beneficiaries could even bring a wrongful death lawsuit. 

In Virginia, there are certain defenses that will prevent plaintiff from recovering. For example, if plaintiff contributed to his own injuries in any way, plaintiff is barred from recovery. For instance, violations of guidelines imposed by the Commonwealth of Virginia for personal safety precautions such as wearing a mask in public, could be used as an affirmative defense by businesses to COVID-19 claims.  

Below are several guidelines to help mitigate risk exposure. (Note: CDC guidelines are constantly changing, and as of May 22, 2020, the current guidelines are:  https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html. Also note, these CDC guidelines are the floor, businesses should work to exceed these guidelines. 

Steps for Business Owners to Consider to Help Minimize Risk Exposure:

  1. Follow, exceed, and stay up to date on changing CDC standards regarding hygiene, cleaning, and sanitization. 
  2. Follow, exceed, and stay up to date on OSHA guidelines for workplace safety. 
  3. Update company policies to reflect current guidance.
  4. Consider what others in your industry are doing. 
  5. Identify a workplace coordinator who will remain responsible for COVID-19 issues and their impact at the workplace.
  6. Promote social distancing. 
  7. Review leave policies with all employees and provide information about available employee assistance services. 
  8. Establish an emergency communications plan.
  9. Share response plans with employees and clearly communicate expectations. 
  10. Enforce rule violations. 

For questions or comments, please feel free to contact Cindy S. Foster (cfoster@setlifflaw.com) at 804-377-1275 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.