A local news station recently contacted me to discuss my thoughts on lawsuits related to COVID-19. I agreed to speak with her. I had previously been part of a discussion with some legislators in Nashville who were putting together some legislation that would make businesses immune to such lawsuits. Along with several other attorneys, I was trying to work on language that would achieve their goal of protecting businesses against unjustified lawsuits but also not go too far so as to cause unintended consequences that could hurt Tennesseans. But, even so, I hadn’t spent enough time considering just how enormous the issues are and the vast number of possible scenarios that could play out relating to COVID-19. From churches, to schools/universities, sports leagues (professional and otherwise), restaurants, medical care providers, and businesses of all types, no person or institution seems untouched by the outbreak and spread of this disease.
My initial reaction was to tell the journalist that lawsuits involving COVID-19 transmission would be very difficult. Let’s look at what is probably the scenario most of us picture when we think about this subject. Let’s say a local business reopens and institutes masking and social distancing policies that are consistent with state and/or local recommendations or mandates. An employee of the business discovers they are COVID positive. The owner insists that employee immediately go home and quarantine. Customers who patronized the business are called and advised of the situation. One of the customers discovers that they, too are COVID positive. Should that business be subject to liability? Most, including me, would say “no.” In my opinion, if a business follows recommendations from a state, local, or federal government or agency, and a customer, knowing the risks, acquires COVID-19 through no apparent fault of the owner, there is no liability. There is no “negligence” or lack of due care. I expect legislation will be enacted when our State General Assembly reconvenes that will provide immunity for this scenario.
On July 14, Washington County, Tennessee, by public order, required all people in public spaces to wear a face covering when social distancing was not possible. What if the same business above decides to ignore the public order and ignore state and local recommendations/mandates? If a customer gets COVID from one of the employees, should that customer be able to sue the business for its failure to implement policies designed to keep customers safe? I don’t know the answer. I suspect that legislation will be passed that will provide for liability only if the owner’s conduct rises above “negligence” and enters into the territory of “gross negligence” or “reckless” behavior before they could be found liable.
Another problem with COVID-19 transmission lawsuits is proving where someone actually acquired the virus. Remember, if you can’t prove that you actually acquired the condition at a particular business, then you are not able to prove a required element of your case. We think we know enough about the virus at this point to know that one can potentially get it through contact with someone at a grocery store, or possibly even in the parking lot on the way into the grocery store. We know that large numbers of COVID-19 carriers have no symptoms, meaning that we could, at any time, be interacting with someone who is unknowingly infecting others. In short, I think it would be very difficult to isolate the transmission of the virus to one particular business.
When laws provide immunity to businesses or healthcare providers from COVID-19 transmission cases, that’s one thing. But legislation has also been advanced that would immunize businesses when they cause harm as a consequence of being “negatively affected” by COVID-19. I’m concerned that this type of language is too broad and will have unintended consequences. Let’s say a parcel delivery driver pulls into your driveway. He is wearing a cloth mask over his face with his eyeglasses on. He says the eyeglasses fogged up when he got back into the truck and began reversing the truck out of the driveway. He doesn’t see a child tying her shoe just next to the driveway and runs over her, causing paralysis. The parcel company could claim that the driver’s vision was “negatively affected” because he was wearing a mask. It would be a terrible injustice on top of an already unspeakable tragedy if there was no remedy available for the little girl or her family.
Can anything good come from COVID-19? Well, maybe we can use it as a good excuse to get outside with family. Consider using this strange time as an opportunity to discover outdoor adventures. We have tremendous resources right here in East Tennessee for hiking, biking, walking, camping, and exploring. Ride a bike at Tannery Knobs, hike one of the Buffalo Mountain trails, or walk, ride, or jog the Tweetsie Trail. These are just few of the many outdoor attractions right here in our own backyard. My family recently drove to Grayson Highlands State Park close to Abingdon, Virginia. After eating a picnic, we went on a nice, relatively easy hike into the park. The views were amazing, and we ran into wild ponies during our hike. We got a little exercise and enjoyed some family time. We were back home in time to watch a movie together that night. We are truly blessed to be surrounded by amazing natural resources here in northeast Tennessee.
I recognize that any subject involving COVID-19 right now is very controversial. And there are so many possible legal issues surrounding COVID that it would be impossible to even approach a complete discussion here. We all no doubt recognize the need to balance the interests of businesses and the economy against the interests of maintaining a safe and healthy environment for our citizens. There are no easy answers. I know we are all looking forward to a day when COVID-19 is in the rearview mirror and we can get on with life as we have known it before. I hope that day comes, and I hope that it comes soon.
These problems are not easy. But if we are reasonably careful and treat others with decency and respect, we can get through this and ultimately move on. Stay safe out there.