While business owners are likely waiting impatiently to
reopen their businesses, what will happen if their invitees (customers,
tenants, vendors) who come into their business contract COVID -19 and become
sick or die? Could they be subject to being sued for their invitee’s illness or
death?
As of now, there is no legal protection in New Jersey if a
business owner reopens its business and one of its invitees contracts COVID-19
to prevent that invitee from suing for his/her illness or, worse, death. But,
assuming New Jersey tort principles apply, could that business owner be held
responsible for its invitee’s “injury”?
The invitee would face a major hurdle to be able to prove
that he or she contracted COVID -19 from visiting that business. With COVID-19
being so widespread in the community and with so many unknowns of how, when,
and where individuals have contracted the illness (unless it is obvious due to
a sick family member or a co-worker with whom they have been in close
proximity), it will be almost impossible to prove that the individual
contracted the illness from visiting that particular business.
However, COVID-19 lawsuits are already being filed for a
myriad of reasons – employment suits, insurance coverage suits over business
interruption coverage, faulty equipment claims, a suit against a certain cruise
line for failure to warn and protect its customers – and the list goes on. Once
plaintiffs’ counsel get back to their offices and their computers, one can
expect an explosion of COVID-19 lawsuits.
But, back to New Jersey law, if we assume a plaintiff is
able to prove he or she contracted COVID-19 from visiting a certain business,
would the courts hold that business owner liable for such individual’s illness
or death?
Under traditional New Jersey premises liability law, “[b]usiness owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation.” Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). The duty of due care to a business invitee includes an affirmative duty to inspect the premises and “requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.”
The New Jersey courts have expanded a business owner’s duty in what is called the “nontraditional approach,” or “full duty analysis” which does not depend upon the classification of the plaintiff (i.e., invitee, licensee, or trespasser). Under this approach, “Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors—the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.” Hopkins, 132 N.J. at 439.
Such an “analysis rests upon whether the imposition of a general duty to exercise reasonable care to prevent foreseeable harm is fair and just under the circumstances.” Hopkins,132 N.J. at 434. Hence, the foreseeability of harm will be key in this type of analysis.
In this evolving world of COVID-19, under either
analysis, will the New Jersey courts impose a duty upon a business owner to
keep its invitees safe from contracting COVID-19 from its business? Only the
courts will be able to answer this question in the future. However, no doubt, the
courts will look at whether the business owner took steps to avoid the spread
of this contagious disease at its business and what steps it took to make its
premises safe for its invitees.
Likely, the courts will look at whether it is fair to
impose a duty upon the business owner to keep its invitees from contracting the
disease while at its business with so many unknowns about this disease. The
courts may conduct a foreseeability analysis to determine what actions that
business owner took to protect its invitees from the “foreseeable harm” of COVID-19
while on its premises, with the information that is known now, not what is
learned in the future about this disease.
But, without a doubt, with a known contagious disease
so widespread in the community, to avoid (or at least minimize) liability, a
business owner must take proactive steps to make its business as safe as
possible. It should follow all governmental guidelines applicable to its
business. Before the business reopens, its owner should consider developing a
written protocol about measures to be taken before the business opens to ensure
the premises are free of COVID-19 and then safety measures with respect to
cleaning, testing, safety equipment, and social distancing after the business
opens.
A business could use a consultant to develop such a
plan, as well as developing a protocol to be put in place after the business
opens. With or without a consultant, written documentation of the protocol, as
well as measures taken after the business opens will be helpful to defend
against any such invitee lawsuits. Documenting testing, cleaning schedules, use
of sanitary products, safety equipment used by employees and/or invitees,
social distancing, and any other safety measures will also be useful to
establish that the business owner took steps to keep its invitees safe.
There is no sure fire way to prevent a lawsuit from an
invitee who is able to prove that he or she contracted COVID-19 at a business,
but if a business owner is pro-active in taking measures to protect both its
employees and its invitees to keep its premises as safe as possible from a
COVID-19 infection, while still being able to conduct its business, the
business will at least be able to minimize exposure to future lawsuits.
