Perhaps no industry has been impacted more by the current COVID-19 pandemic than the hospitality industry. After being closed or operating on a substantially limited basis since March, many hotels and restaurants are reopening across the U.S. As they reopen, potential civil liability exposure for COVID-19-related claims is an issue hotel and restaurant owners must consider.
In a typical negligence case, a plaintiff must demonstrate that (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached the duty of care, and (3) the defendant's breach caused the plaintiff injuries and damages. In most states, business owners have a duty to exercise “reasonable” care to protect their patrons and customers from being injured. While there are no published decisions specifying what constitutes “reasonable” care during the COVID-19 pandemic, hospitality business owners should implement various safety protocols to protect themselves from future COVID-19-related liability claims.
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For example, employees should wear masks, as recommended by the Centers for Disease Control and Prevention, and follow the social distancing and essential services orders issued at the state level. Signs can be posted in highly visible locations (e.g., at entrances and in restrooms) that promote everyday protective measures and describe how to stop the spread of germs, such as by properly washing hands and wearing a face covering. Facilities should be regularly cleaned and disinfected, and the health and well-being of employees who are interacting with customers should be regularly monitored, such as through temperature checks. Employers should also actively encourage employees who are sick or have recently had a close contact with a person with COVID-19 to stay home and can also develop policies that encourage sick employees to stay at home without fear of reprisal. While there is no guarantee patrons and customers who contract COVID-19 after visiting a business like a hotel or restaurant will not file lawsuits, implementing some or all of these safety measures could dissuade them from doing so and will provide viable legal defenses in the event a lawsuit is filed.
Protecting Businesses
In some states, recent laws have been enacted with the specific goal of insulating businesses, including the hospitality industry, from civil liability for COVID-19-related lawsuits. For instance, in my home state of Georgia, Gov. Brian Kemp recently signed into law Senate Bill 359, the “Georgia COVID-19 Pandemic Business Safety Act.” SB 359 provides that businesses cannot be held liable for “transmission, infection, exposure or potential exposure of COVID-19” on the premises of any entity unless the claimant proves that the entity acted with “gross negligence, willful and wanton misconduct, reckless infliction of harm or intentional infliction of harm.” SB 359 also creates a rebuttable presumption of assumption of risk by any claimant if a business posts a sign at the premises’ point of entry in at least 1-inch Arial font placed apart from any other text stating:
Warning
Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.
In Louisiana, House Bill 826 provides protections for hotels and restaurants unless they fail to substantially comply with the applicable COVID-19 procedures established by the federal, state or local agency that governs the business and the injury or death was caused by the business’ “gross negligence or wanton or reckless misconduct.” Similarly, North Carolina House Bill 118, titled “COVID-19 Liability Safe Harbor,” grants limited immunity to individuals and entities for any act or omission resulting in contraction of COVID-19 unless the act or omission amounts to gross negligence, willful or wanton conduct or intentional wrongdoing. Iowa, Louisiana, Utah and Arkansas also have enacted laws with substantially similar language.
While there are no opinions interpreting these new laws, in most cases they should insulate hotels and restaurants from liability if local, state and federal COVID-19-related guidelines are followed. However, there is nothing preventing someone who believes he or she was infected with COVID-19 while visiting a business from filing a lawsuit in these states. If a suit is filed, discovery will be conducted, which will result in the business’ COVID-19 safety protocols coming under scrutiny. In addition to having to produce documents related to these protocols, current and former employees, customers and patrons could be required to give depositions under oath and will be asked many questions about the business’s COVID-19 safety protocols and whether they were followed.
If, for instance, it is learned in discovery that a business’s employees regularly did not wear masks, that the business was not properly cleaned or disinfected on a regular basis or that the business allowed sick employees to report to work, a court could hold that these are simple acts of negligence and dismiss the case. Alternatively, a court could find that the conduct possibly constitutes gross negligence, recklessness, willfulness or wantonness and allow the case to proceed to trial, at which point anything is possible.
The Burden of Proof
Finally, regardless of whether a business is operating in a state where liability protections have been enacted, every claimant filing a COVID-19 claim will have to prove they were infected at the business and that their damages and injuries were caused by the infection. This will be a very difficult showing. However, if COVID-19-related guidelines were not followed, this showing will be made much easier, particularly if a claimant has only been to a few places outside of their home where they could have been exposed and if they have experienced expert witnesses testifying on their behalf.
For these reasons, all business owners in the hospitality industry, including those in states where new laws providing additional liability protections have been enacted, are best served adhering to local, state and federal guidelines to protect their patrons and customers from exposure to COVID-19 and themselves from potential civil liability.
Jackson Dial is a partner with the law firm of Weinberg Wheeler Hudgins Gunn & Dial.