Litigation Practice, Group General Counsel, P.C.
(Main: 703 556-0411)

The COVID-19 “coronavirus” situation is complex and unprecedented in its impact on all phases of life and government. Most states have issued a recent rash of executive orders, regulations, health standards and the like in the emergency response to the pandemic. Several states have put into place complete lockdowns except for necessary personnel. For businesses remaining open, most of these states restrict the number of people in any particular gathering to ten or fewer.

The state regulations are inconsistent. In some, businesses such as barber shops have been closed, while in others these same businesses remain open. Same with construction sites. Restaurants are allowed to stay open if they offer “take out,” but that usually requires an individual to actually enter the restaurant and pay a cashier. Grocery and drug stores have generally been deemed “necessary” to staying open, but they often are short staffed and crowded with long lines at the registers.

These are just a smattering of businesses where there is a potential for a gathering of more than ten people at any given time, and/or an inability to allow for proper “social distancing.” If COVID-19 is transmitted in one of these examples – and there are numerous other potential situations – could that business be sued under a tort theory by the person(s) infected in that location?

The short answer is probably “yes,” with potential theories of liability including negligence per se and/or negligence.

Negligence Per Se

In negligence per se cases, a plaintiff may prevail if he or she shows “by a preponderance of evidence” that a statute or regulation was violated; the purpose of the statute or regulation is to promote public safety; the statute or regulation was enacted to protect persons in the plaintiff’s position, or to prevent the type of accident that occurred; and the violation of the statute or regulation caused the harm complained about resulting in damage(s). The statute or regulation must do more than “repeat the common law duty of reasonable care” and must set forth “specific guidelines to govern behavior.” The recent statutes, regulations and executive orders enacted in response to the COVID-19 pandemic might meet these criteria. If, for example, a bus, barber shop, or restaurant serving take out permit more than ten (10) people into their premises at one time, and someone becomes infected, is that particular business subject to liability under a negligence per se theory?
To defend a negligence per se theory, the defendant must show evidence excusing the violation, in which case the violation of the statute or regulation may be raised by a plaintiff as “evidence of negligence,” rather than a “per se” violation of the applicable standard of care.

Ordinary Negligence

A violation of a statute or regulation, in the context of an ordinary “negligence” claim may also be presented as “evidence of negligence,” and not “per se” negligence. In ordinary negligence cases, the jury or trier of fact must weigh all of the facts of the case, including a consideration of a violation of statute, regulation and/or executive order, to determine whether the situation rises to the level of a violation of the applicable standard of care that caused the complained of damage(s).

Typical defenses in any ordinary negligence case should be available to the defendant, including “assumption of the risk. The District of Columbia, Maryland and Virginia still recognize “contributory negligence” as a complete bar to liability. Most other jurisdictions apply the doctrine of “comparative negligence.”

Protection for a business may come from the business’ Commercial General Liability Policy (“CGL policy”). It is doubtful that, due to the rapidly evolving course of events, coverage under such policies has yet been fully tested. A review of a business’ CGL policy might be wise for a business, as CGL policies potentially provide payment for the business’ “defense and indemnity” in tort cases. Intentional acts are generally not covered as a matter of public policy. Lawyers and insurance professionals are very good resources to review CGL policies and help make coverage determinations and/or recommendations.

Thus, in addition to ensuring their business is complying with relevant COVID-19 laws/regulations and taking appropriate safety precautions to protect their employees and customers, businesses would be wise to contact their attorney and, at a minimum, their insurance professional for a review and analysis of their CGL coverage. Getting out in front of potential litigation with a coverage review might be wise.