Senate Bill 359 & COVID-19 Business Liability

A Plaintiff may attempt to establish gross negligence by establishing significant deviations from the standard of care. In the case of COVID-19, you would take the public health guidelines and compare them with what the business actually does to comply with the guidelines. Do they require masks? Do employees wear masks? Do they require social distancing? Do they have proper COVID signage? Blatant disregard for safety measures by the business will still be a basis to establish gross negligence and avoid the liability protection in the statute.

However, it is likely that we will not see a lot of COVID cases getting filed against most businesses for a couple of reasons:

1. Regardless of liability protection in the statute, there is a problem establishing causation. How do you prove that a person contracted the virus at business A instead of business B? Contact tracing might shed some light on that, but it does not appear that the government is good enough at contact tracing at this point to really provide enough evidence to establish causation. The exception to this will be high density, long term exposures, meaning cruise ships, nursing homes, and businesses of this sort. There are already class actions filed against the cruise lines and nursing home type of establishments.

2. Smaller businesses are probably not interesting lawsuit targets in the COVID situation because of the presumed inability to collect a judgment. It may be the case that the small business’s general liability policy excludes coverage for COVID claims. Depending on the size and strength of the business the litigation might force them out of business, especially local mom and pop establishments. 

Bottom line, businesses should make an effort to do the right thing and operate in a manner that is designed to minimize the spread of the COVID virus and follow guidelines that are applicable to that particular business. If they do that, they will greatly reduce their risk from a liability standpoint. This statute helps but is not ironclad, so businesses must be vigilant and pro-active.

If you are considering suing or being sued in relation to COVID-19, you need an experienced liability attorney on your side. The team at York Gaskill has vast experience representing individuals and businesses in liability cases. Contact us directly to discuss your specific case.  We also encourage everyone to stay safe and take the necessary precautions during these challenging times.