COVID-19 Liability: Waivers, Warnings, and PPE
This guest post was written by Kevin Lonzo, Esq. of Lonzo Law. This article is intended to be used as educational material and is not meant to be construed as individual legal advice. Every entity and individual is different, so please consult an attorney regarding your situation to determine your best path going forward.
Am I doing enough to account for the liability risk that comes with opening after COVID-19? That is the first question I hear from clients these days as the FEC industry begins to recover. The next question is almost always something along the lines of, “Should I be doing more?” My two cents: why wouldn’t you do more?
Legally speaking, the significant majority of claims that you will ever face in the FEC industry will be based on negligence (also commonly referred to as personal injury). A claim from a guest who has contracted COVID-19 (or any other disease or virus for that matter) will not be any different. So why wouldn’t you do everything within your power to be prepared for the claims that could be coming your way? Below, I will discuss what a claim of negligence consists of and some steps that you can take to protect yourself from COVID-19 related negligence claims.
What is negligence?
Negligence is a term many in the industry have heard, but most don’t actually know what it means in a legal sense. While the specific details of what is required to bring a negligence claim may vary from state to state, the four pillars of a negligence claim are almost uniform across the country: duty, breach, causation, and damages. That is what a guest will need to prove on some level if they ever want to win a case against your facility. Without all four pillars, a claim cannot exist. Therefore, your goal as a business owner who does not want to be sued is to make sure that at least one of these pillars is not present in a claim against you.
Now here is the hard part: three of the pillars you cannot do anything about in advance. They are just an unwelcome aspect of owning a business in this country. The pillar of duty is almost always assumed to be established for a business who has guests on its property. The pillar of causation will be assumed to be present unless unopposed evidence is presented to the judge early in the case. And damages will always be present in a claim, because, why else would someone bring a claim in the first place? This leaves one pillar for you to prepare for in advance of a claim . . . the breach pillar.
What is a breach in a negligence claim?
In an effort to avoid a full-on law school lesson titled, “How do we determine if a breach existed?” I will boil the breach pillar down to this generally accepted language: “Did the owner act reasonably in trying to protect its guests from harm?” (Feel free to look-up U.S. v. Carroll Towing if you are looking to nerd out on some case law about breach standards and formulas). While the standards and formulas used to determine a breach may vary on a state-by-state basis, all of them come back to the simple question of reasonableness.
So how does that tie back into COVID-19 liability? When wondering if a COVID-19 precaution or action is warranted, ask if it is reasonable under your circumstances.
What is reasonable?
As you can probably guess, deciding what is reasonable depends on the situation and should be decided with your attorney. However, I can say that over the last couple of months, every one of my clients has come to me to ask what they should do as they reopen. And no matter if it is a client with one facility or multiple facilities, I initially respond the same way to all of them: “You should do everything you can do that won’t significantly interrupt your ability to make money and run your business.” What that is depends on each facility, each state, and your personal situation.
Below are a few examples of questions clients have asked me and how I typically respond:
Q. Should I update my liability waiver to include a COVID-19 clause?
A: No. You should update your liability waiver to include an all-encompassing clause which would cover any bacteria or viral infection that is picked up at your facility. It won’t hinder your ability to make money or stop your business from existing. And it won’t cost as much as you think! Go to the lawyer who wrote your waiver and ask them to update it by adding this type of clause. If they know the waiver, it shouldn’t cost more than a few hundred dollars to update. Now you’re covered and have provided a tool for your lawyer or insurance company if they ever need to defend your facility against a suit like this.
Is it a silver bullet to defeat all claims? No. But it provides your defense team a necessary tool to reduce the final payout of a claim.
One more note on this: don’t do it yourself or pull something off of the internet. While I am not a believer in reinventing the wheel, I do believe one should never assume that another person’s wheel will be a good fit for your ride. Every professional waiver is specific to that facility. It might seem like an easy fix to just do it yourself, but it could cost you a lot of money on the backend if it isn’t right for your facility.
Q: Will I get sued if a guest catches COVID-19?
A: In short, yes, anybody can sue anybody for anything. Welcome to the U.S. legal system! The real question should be, “Will they be able to win?” And if I am being honest with you, I don’t know. And if another lawyer tells you otherwise, they’re lying.
Elie Honig, legal analyst for CNN, addressed this issue in a Q&A section towards the end of his CNN column on May 30, 2020. (The portion discussing COVID-19 liability comes towards the end of the article). In summary, Mr. Honig says that until the courts determine some precedent that discusses what the reasonable standard of care should be, no lawyer can definitively tell you what you can do to prevent from being sued.
In other words, if you wanted to know how to prevent being sued for a slip and fall, any lawyer who knows your jurisdiction can do a little bit of research and tell you what is, and isn’t, considered reasonable based on the court’s prior decisions. However, COVID-19 litigation is uncharted territory, so we lawyers can all suggest things and guess, but unfortunately, we don’t really know yet. This further emphasizes my desire for my clients to do everything they can, because we probably won’t know what will be considered reasonable for COVID-19 until facilities have already been open for quite some time.
Q: Who needs to wear personal protective equipment (PPE)?
A: I like to defer to the infectious disease experts on this question. While I may not know what the courts will determine to be a reasonable standard, I am quite confident that if you do not at least follow the CDC Business Guidelines, a court will determine you were unreasonable. That being said, the CDC recommendations should be the minimum standard. Once you reach those standards, check the state and local requirements.
Next, I suggest you ask your staff to determine what might make them comfortable and what they would like to see implemented. The last thing you want is an employee diagnosed with COVID-19 accusing you of ignoring their requests. Remember, you are responsible for your employees, too.
Last, be aware of what is going on in your area. If you have a major uptick in cases, what was considered reasonable measures could change. I know this is a moving target. It’s not fair, and I wish I could give you more, but I can’t. The best way to ensure you hit this target is by doing as much as reasonably possible with the information available to you.
Q. Should I provide a warning about COVID-19?
A: Yes. For two simple reasons:
1. It’s not like putting a warning on your website and on a placard at the front of the building is going to scare anyone away. Unless a guest is just returning from a very long remote trip in which they did not have any contact with the outside world (like this couple) and decided the first place they wanted to go was to your facility, your warning isn’t going to surprise or deter anyone. However, it will make sure that they can’t argue at a later date that they were unaware of the dangers of COVID-19 while visiting your facility.
2. If Disney is OK posting a warning, you should be to. Disney has an army of very well-paid lawyers; if it’s something they think is reasonable, it’s probably not a bad idea and could start to become the “industry standard.” However, do not copy that language and just slap it on to your website word for word. Have your own attorney review the language to ensure it works for your facility.
Q. Will my insurance cover a claim for COVID-19?
A: It depends. The best person to contact about this question is your insurance agent. If you don’t have an agent (particularly one who has experience in the FEC industry), get one. They should be able to determine if you would be covered under such a claim and can help you secure coverage you might be missing. Good insurance and great insurance agents go a long way.
While COVID-19 is changing the way many FECs are doing business, it doesn’t mean that the only way to reduce your exposure to liability is by taking crazy measures. It also doesn’t mean that you should just go back to the way you used to do things. Changes need to happen, but before you decide what changes you should or shouldn’t make, talk to your attorney, and determine what is reasonable for you and your FEC.
Kevin Lonzo, Esq., is an attorney who has focused his practice on the family and entertainment industry for the greater part of his legal career. Over the years, his practice has represented businesses and individuals from all sectors of the industry, from supplier to owner, large to small. He is an owner and partner with the SGB Network, LLC and is the Founding Partner of Lonzo Law, PLLC. If you would like to contact Kevin for specific questions, email him at firstname.lastname@example.org.