Liability Fears Largely Unfounded

May 19th, 2020

As governments begin relaxing business closure mandates and the slow move towards a return to normalcy, more and more businesses are wondering if they could face lawsuits if they reopen too soon.

As is often the case with media discussions, the worst fears of floods of lawsuits are not warranted.

Such lawsuits would be handled according to the rules governing personal injury cases.  A plaintiff would therefore have to prove that a business was negligent, that its negligence caused injury to the plaintiff, and that the plaintiff suffered harm as a result.  When someone suffers some of the more serious complications attributed to COVID-19 (including but not limited to death), the last element will be the easy part of the case, and the large suit demands that would accompany such cases are a big part of what is fueling the current fears.  But monetary awards can happen only if a plaintiff proves all three components of a claim, and those first two requirements are highly unlikely to be satisfied.

In order to prove that a business had been negligent, the plaintiff would first have to show that there were common standards in place for a business to assure the safety of its patrons, and that the business then failed to meet those standards.  But the speed with which the current pandemic has swept the country means that there has been no time for coalescing around certain safety standards.  And by the time that might happen, in all likelihood the pandemic will have passed.

Even if a plaintiff somehow managed to clear that hurdle, proving that the business was the specific place where COVID-19 was contracted will almost certainly prove an insurmountable burden.  Plaintiffs are not allowed to give testimony on such matters of medical causation; they must hire professional experts (here, in the field of epidemiology) just to keep their cases alive.  All available information suggests that COVID-19 is virtually ubiquitous, and that it can be contracted from carriers – persons who never show symptoms and who are completely unaware that they have ever been infected.  Given the sheer number of people that a typical plaintiff will have had interactions with, it is hard to imagine a scenario where the tail could be pinned on a particular business’s donkey to the satisfaction of court evidentiary standards.

But what if the plaintiff were an employee, who spent a much more substantial amount of time on the business’s premises?  That would qualify as a work-related injury, meaning that the plaintiff could proceed only in the workers’ compensation system.  Even there, such claims would likely fall due to the expected inability to tie having contracted the disease to the employer as the source.

There are indeed precedents for suits blaming defendants for infecting plaintiffs meeting with success.  But most of these have arisen in the context of sexually transmitted diseases.  Plaintiffs in those cases typically testify that they were previously uninfected, that they had relations only with the defendant, and that they then found themselves infected.  Coupled with a positive test of the defendant, judges and juries have upheld findings that the defendant wronged the plaintiff.  That is, plaintiffs in these cases do not face the same sort of difficulties proving a cause-and-effect linkage as would be the case with a COVID-19 claim.

Even in the face of such obstacles, many media reports suggest fear that plaintiffs’ lawyers will file frivolous cases in an effort to seek settlements.  While this fear is prevalent in many scenarios, it is typically overblown.  Given the need to invest substantial time, to advance huge amounts of cash to retain experts, and to work on a contingency basis (meaning the lawyer gets paid only if there is a recovery), it is hard to imagine many savvy lawyers seeking to sign up COVID-19 clients.  Not unless they want to work a lot, only to lose money.

There may be a few, inexperienced lawyers who take a run at these sorts of cases.  Most likely, they will soon get schooled in the realities of taking cases on a flier.  Insurance companies and their lawyers do not tend to roll over easily, especially not when total victory in court is a near certainty.

In short, as with many aspects of the current pandemic, the fears wrought of people’s imaginations can far exceed the realities.  From our perspective, a business considering reopening should do so in a way that maximizes the speed of its return to normal.  Some safeguards should be adopted just to satisfy the expectations many customers are likely to have.  But business owners should lose no sleep over a supposed threat of lawsuits.  Especially in a defense-friendly state like Virginia, such fears are simply not justified. 

Marrs & Henry remains fully open and available to you during our current, difficult time.  If you need help, there’s no need to wait.  We can meet with you in person at our offices, we can come to you, we can talk by telephone, we can be reached by e-mail, and we’re also available via video teleconference.