As the state of Illinois slowly reopens its economy market category by market category, what are customers’ chances of claiming that they contracted COVID-19 while shopping, dining, or receiving services like haircuts?
Although it might be difficult for a customer to prove such a case, companies like Walmart Inc. and Carnival Corp. are already facing such claims, according to Insurance Journal, and legal experts say the court system could face an upsurge. The U.S. Chamber of Commerce is afraid that defending these cases could bankrupt businesses. So it’s clearly a possibility.
Plaintiffs Face Stiff Challenges …
Succeeding in such a lawsuit will be an uphill battle, though, because plaintiffs must prove it was more likely than not that a particular establishment is the primary cause of their illness. That’s challenging because COVID-19 is so widespread right now, and it’s difficult to precisely trace the source of one’s infection, according to the National Law Review.
John Goldberg, professor at Harvard Law School and an expert in tort law, told Insurance Journal much the same thing, noting plaintiffs must demonstrate that the business “breached a duty of care owed to the customers and that its actions caused them harm.”
While plaintiffs might be able to show that a particular store did not follow proper precautions, proving that they contracted COVID-19 at that business will be much harder, Mike Steenson of Mitchell Hamline School of Law in St. Paul, Minnesota, told Insurance Journal.
Nicholas Rozansky of the Los Angeles law firm Brutzkus Gubner notes that the two-week-long incubation period of the virus will compound plaintiffs’ challenges. And Benjamin Zipursky, law professor at Fordham University, added that a plaintiff would need to prove he or she did not have the virus before entering the business and did not contract it going to and from the business.
… But They Have a Chance With Proper Documentation
But that doesn’t mean a case cannot succeed, especially if there is evidence that a particular business did not take the proper precautions. If they did not clean surfaces regularly, keep patrons distanced and check workers for virus symptoms, for example, juries might decide to hold a business at least partially responsible, Insurance Journal says.
A plaintiff could have a case against a business that skirts federal or state health guidelines, especially those that open before they are legally allowed, for failure “to exercise the standard of care that a reasonably prudent person would provide,” the National Law Review says. The chances increase if a large number of customers, employees or vendors who have frequented that same business have contracted coronavirus.
Customers who believe they became infected with COVID-19 at a specific business should ask whether it has a written policy on COVID-19, and whether the business can document that it has followed CDC and state guidance— such as face mask requirements, limits on the numbers of customers, and industry-specific rules—and if not, why not.
Other questions for plaintiffs to ask are whether a business has required sick employees to stay home until they are symptom-free for at least three days, sanitized common surfaces, encouraged social distancing, and attempted to minimize interaction. This chart from Ogletree Deakins covers current business closure orders and rules for re-opening businesses.
On the flip side, customers would be wise to follow any precautions asked of them, primarily for health reasons but also because a refusal to do so could work against a potential case. While health care quality masks should be set aside for frontline workers, employees and customers can wear dust masks, scarves, bandanas or anything else that covers the nose and mouth, since even those without symptoms of COVID-19 can still spread it to others.
Speaking with a personal injury attorney will give you a better sense of your specific rights and how best to proceed. Peter Wachowski brings more than 25 years of experience in this area. He can be contacted at 866-699-3339 or peter@bellas-wachowski.com.