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Will New Jersey Business Owners Be Liable If Invitees Contract COVID-19 From Their Business After They Reopen?

By on April 24, 2020 in Duty of Care with 0 Comments

While business owners are likely waiting impatiently to reopen their businesses, what will happen if their invitees (customers, tenants, vendors) who come into their business contract COVID -19 and become sick or die? Could they be subject to being sued for their invitee’s illness or death?

As of now, there is no legal protection in New Jersey if a business owner reopens its business and one of its invitees contracts COVID-19 to prevent that invitee from suing for his/her illness or, worse, death. But, assuming New Jersey tort principles apply, could that business owner be held responsible for its invitee’s “injury”?

The invitee would face a major hurdle to be able to prove that he or she contracted COVID -19 from visiting that business. With COVID-19 being so widespread in the community and with so many unknowns of how, when, and where individuals have contracted the illness (unless it is obvious due to a sick family member or a co-worker with whom they have been in close proximity), it will be almost impossible to prove that the individual contracted the illness from visiting that particular business.

However, COVID-19 lawsuits are already being filed for a myriad of reasons – employment suits, insurance coverage suits over business interruption coverage, faulty equipment claims, a suit against a certain cruise line for failure to warn and protect its customers – and the list goes on. Once plaintiffs’ counsel get back to their offices and their computers, one can expect an explosion of COVID-19 lawsuits.

But, back to New Jersey law, if we assume a plaintiff is able to prove he or she contracted COVID-19 from visiting a certain business, would the courts hold that business owner liable for such individual’s illness or death?  

Under traditional New Jersey premises liability law, “[b]usiness owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation.” Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). The duty of due care to a business invitee includes an affirmative duty to inspect the premises and “requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.”

The New Jersey courts have expanded a business owner’s duty in what is called the “nontraditional approach,” or “full duty analysis” which does not depend upon the classification of the plaintiff (i.e., invitee, licensee, or trespasser). Under this approach, “Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.  That inquiry involves identifying, weighing, and balancing several factors—the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.” Hopkins, 132 N.J. at 439.

Such an “analysis rests upon whether the imposition of a general duty to exercise reasonable care to prevent foreseeable harm is fair and just under the circumstances.” Hopkins,132 N.J. at 434. Hence, the foreseeability of harm will be key in this type of analysis.

In this evolving world of COVID-19, under either analysis, will the New Jersey courts impose a duty upon a business owner to keep its invitees safe from contracting COVID-19 from its business? Only the courts will be able to answer this question in the future. However, no doubt, the courts will look at whether the business owner took steps to avoid the spread of this contagious disease at its business and what steps it took to make its premises safe for its invitees.

Likely, the courts will look at whether it is fair to impose a duty upon the business owner to keep its invitees from contracting the disease while at its business with so many unknowns about this disease. The courts may conduct a foreseeability analysis to determine what actions that business owner took to protect its invitees from the “foreseeable harm” of COVID-19 while on its premises, with the information that is known now, not what is learned in the future about this disease.

But, without a doubt, with a known contagious disease so widespread in the community, to avoid (or at least minimize) liability, a business owner must take proactive steps to make its business as safe as possible. It should follow all governmental guidelines applicable to its business. Before the business reopens, its owner should consider developing a written protocol about measures to be taken before the business opens to ensure the premises are free of COVID-19 and then safety measures with respect to cleaning, testing, safety equipment, and social distancing after the business opens.

A business could use a consultant to develop such a plan, as well as developing a protocol to be put in place after the business opens. With or without a consultant, written documentation of the protocol, as well as measures taken after the business opens will be helpful to defend against any such invitee lawsuits. Documenting testing, cleaning schedules, use of sanitary products, safety equipment used by employees and/or invitees, social distancing, and any other safety measures will also be useful to establish that the business owner took steps to keep its invitees safe.

There is no sure fire way to prevent a lawsuit from an invitee who is able to prove that he or she contracted COVID-19 at a business, but if a business owner is pro-active in taking measures to protect both its employees and its invitees to keep its premises as safe as possible from a COVID-19 infection, while still being able to conduct its business, the business will at least be able to minimize exposure to future lawsuits.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

*No aspect of this advertisement has been submitted to or approved by the Supreme Court of New Jersey.

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