It's been nearly six months since the HHS Secretary declared COVID-19 a public health emergency. As communities emerge from quarantine, businesses are on high alert regarding potential COVID-19 liability. Some businesses have already been afforded protection'suppliers of so-called COVID-19 countermeasures may have immunity under the Secretary's Prep Act1 Declaration,2 medical providers and nursing homes may have immunity under various state laws and declarations,3 and others may have defenses based on regulatory guidance.4
So what about everyone else? This article explores who else may be exposed to liability and what defenses may be available to them.
Am I Exposed?
Lawyers have consistently shown their boundless "creativity" when it comes to finding people to sue, and there's no reason to expect COVID-19 will be different. Therefore, the owner of any premises where transmission may be alleged to have occurred, and the maker of any product that may be alleged to have contributed to transmission, must anticipate potential COVID-19 litigation, no matter how frivolous the claims may be. The good news is that such claims will be subject to a number of legal defenses, and, in a small but growing number of states, expanded immunity legislation.
Legislation
While many states have been busy considering legislation intended to protect businesses vulnerable to COVID-19 liability, only a handful of states so far have actually passed their proposed legislation. One such state is Utah, which passed a law affording civil immunity to any "person" for claims of exposure to COVID-19 while on the person's premises, unless the person engaged in willful misconduct or reckless/intentional harm.5 North Carolina passed a similar law, but limited its reach to "essential businesses" and claims from a "customer or employee."6 And in Oklahoma, immunity is tied to the business acting "in compliance or consistent with federal or state regulations" or other applicable guidance.7
Other states are taking a more focused approach. For example, Louisiana's legislative package includes a provision specifically immunizing restaurants from suit "for injury or death due to COVID-19 infection transmitted through the preparation and serving of food and beverage products by the restaurant," whether via dine-in, takeout, drive-through, or delivery, unless it occurred through gross negligence / intentional misconduct.8 And Mississippi, the most recent state to pass COVID-19 legislation, is attempting to immunize persons who design, manufacture, sell, or otherwise distribute "a qualified product in response to COVID-19" for injury related to that product.9
While these legislative efforts are positive steps for businesses, progress is both slow and uncertain, leaving businesses in most states still vulnerable.
Causation
A cognizable negligence claim arising from COVID-19 will require proof of both general causation, i.e. that COVID-19 can be transmitted and contracted in the manner alleged, and...
