As businesses begin to reopen following the early 2020 lockdown due to COVID-19, proprietors need to consider protecting both employees and customers/clients who enter these businesses. Although traditionally premises liability has applied to “slip and fall’ cases, presumably proprietors could be held liable for invitees infected on the premises if certain conditions are met. Under Maryland law, to establish a cause of action for negligence against a proprietor, a customer/client must establish: (1) that a dangerous condition existed; and (2) that the proprietor created the dangerous condition or had actual or constructive knowledge of its existence prior to the invitee’s injury. Although a business owner is not an insurer with an unlimited obligation to protect invitees, business owner’s duties include the obligation to warn invitees of known hidden dangers, a duty to inspect, and a duty to take reasonable precautions against foreseeable dangers.
Potential Liability Could Be Far Greater than a Business Owner Might Think
The extent of potential liability to any person for negligence generally is limited by the foreseeability that the person could be injured. The law recognizes “eggshell skull” rule, which provides that someone who tortiously injures another is not absolved of liability because the injured party had some physical condition that made her/him particularly susceptible to injury. Moreover, monetary damages are not limited to the amount that the average person would have suffered.
Potential liability also may not be limited solely to the customer/client who physically enters the premises. The public repeatedly has heard stories about persons who were infected in one setting, then infected family members in their homes. Even if a business could somehow cater only to clientele who have a low risk of experiencing serious symptoms from COVID-19, a jury or judge might find it foreseeable that a customer/client who has no pre-existing physical problems would reside with others who do. The extent to which a business owner is liable for a non-customer’s injury, resulting from a customer’s exposure to COVID-19 has not been tested yet by the appellate courts, but the goal is not to be a defendant in that test case.
Preparation Is Key
Because of the potential for liability, before reopening (or as soon as possible after reopening), every business should have a risk reduction plan. That plan should be written in conjunction with, or at least reviewed by, an attorney. Waiting until after there is a problem to create a plan is like waiting until after you smell smoke to buy a fire extinguisher. The plan should be a living document, which can, and should, be updated to account for new information. Among other things, plans should provide for such contingencies as: (1) what to do if an employee informs the employer that the employee has tested positive for COVID-19 or has been exposed to someone who has tested positive; (2) what to do if a customer/client informs the business that the customer has tested positive; and (3) what to do if an employee or client/customer has not been tested but shows symptoms of COVID-19. Plans should contain details regarding precautions the business will take to protect its employees and customers/clients. These plans should also provide for the contingency of what to do if and when someone fails to take the precautions outlined in the plan.
For help creating or reviewing a plan, contact Anthony P. Ashton at Baxter|Baker, 410-230-3802, firstname.lastname@example.org.