Are Businesses Liable if a Customer Contracts COVID-19?

For the last year, COVID-19 has kept many businesses, amusement parks, and restaurants closed or limited. As states tightened restrictions and quarantine guidelines, these establishments reduced their capacity, operated on a limited basis or simply shuttered their doors. Now that the COVID-19 vaccine is being given across the country, many restaurant and business owners are eager to get back to work and resume a new normal.

However, what happens if a guest or customer contracts COVID-19 while visiting their establishment? Is a business, restaurant or amusement park liable if a customer contracts Coronavirus? What precautions does the business owner need to take to ensure that they do not face unnecessary legal risks?

In this article, we asked highly experienced lawyers throughout the United States about any potential COVID-19 liability associated with businesses opening their doors again. Many attorneys who contributed to this article have over 10 years of experience, and all are licensed lawyers within the United States. We stuck to the legal facts and addressed current CDC guidelines and policies as they are currently written and implemented to answer questions and concerns among business owners and the public.

Can You Prove Causation That the Business was Negligent?

In order to successfully file a personal injury lawsuit after contracting COVID-19, you must prove causation. This is incredibly difficult to do during a global pandemic.

According to attorney Darren Tobin of Tobin Injury Law, a good lawyer knows that a solid case hinges on proving causation. “Even if there was a case to be pursued, someone with coronavirus is going to be hard-pressed to prove causation. Coronavirus is so rampant that it is likely you can catch it anywhere.”

Did You Assume Liability?

When seeking compensation after an injury or illness contracted at an amusement park, restaurant, gym or other business a defense attorney will ask if you assumed liability when entering this establishment. For most businesses there is an inherent assumption risk on your behalf by entering a business. That means a person willingly enters these types of locations with a full understanding of the dangers involved during a pandemic involving a contagious disease.

During the pandemic, many states also passed laws stating that customers assume a risk of COVID-19 entering into a business or facility. This has helped businesses open without the fear of facing litigation if a customer contracts the virus.

According to attorney Michael Foster of Foster Wallace, “There shouldn't be much concern for amusement parks from a liability standpoint regarding claims for coronavirus transmissions. Every state has different laws obviously, but many state legislatures have inserted provisions protecting businesses over this last year for these types of claims... There is basically no way of knowing whether you picked up COVID19 at a particular place and proving you actually received COVID19 there."

When Would a Business, Gym or Amusement Park Face Liability?

While a business, gym, restaurant, or amusement park may not be held liable if a patron contracts COVID-19, they can be held liable if they act negligently. This means that they can — and should — take certain precautions to prevent the spread of this deadly virus and keep their guests safe.

Attorney Luciano Oliveira of Friedman & Feiger believes that some businesses can face liability if they did not take necessary precautions. This could include:

1. Not following the standards recommended by local, state or federal governments
2. Not following through with safety practices they pledged to implement
3. Did not warn customers of an increased risk of transmission if they engage in certain activities

Mr. Oliveira says “A business generally wouldn’t be liable for negligent transmission, but if a case happens to have evidence supporting a gross negligence in addressing the risks of COVID-19 transmission, damages could include all the expenses incurred by the customer while recovering, all the losses incurred due to the customer’s time off work, and future losses and expenses as well in the event of long term consequences.”

What Can Businesses and Amusement Parks Do to Reduce Liability?

The easiest thing to do is to follow all recommendations from local, state, and federal government officials. This may mean:

• Requiring customers and employees wear masks at all times
• Denying service to those who refuse to wear masks
• Placing hand sanitizer around establishment
• Taking temperatures on admission
• Placing warnings of COVID-19 on the website and in printed materials, as well as around the establishment

Take Disney for example, while open, they have a warning on their website, in all advertisement materials, and in park ticket areas. This helps them communicate expectations of customers, and to avoid certain liabilities when related to COVID-19.

Do I Have a Case?

When looking to see if you have a potential case against an amusement park, restaurant, gym, or other establishment after contracting COVID-19, it is important to speak to find an injury attorney experienced in negligent transmission matters. However, that's really not as easy as it sounds. What would a lawyer look for when determining if someone might have a case?

According to attorney John Whitfield at Whitfield Bryson, LLP, "As a general practice, cases that I take against a business involve those where reasonable care was not used by the business owner to protect patrons from harm. When looking at the facts of a potential case, I will want to know the following:

• Compliance with CDC guidelines — any business can easily download these guidelines at https://www.cdc.gov/coronavirus/2019-ncov/index.html.
• Training of employees — Covid-19 exposure requires businesses to be proactive in training its employees to combat contraction of this potentially deadly virus.
• Familiarity of state law protections for Covid-19 exposure — Before accepting representation of a client infected by Covid-19 from a business, I will want to know the state statutory protections enacted to protect a business from such liability.”

*Update January 12, 2022: A recent lawsuit alleges that an employee who died of Covid-19 was caused by employer neglect, and refusal to follow CDC and County guidelines. See full press release here.

Conclusion

Generally speaking, if you're a business owner and you're wondering if you can be sued if someone gets Coronavirus at your business, the attorneys surveyed generally agreed that if you've taken proper precautions, followed CDC guidelines, and conducted employee training on COVID-19 safety that liability would be incredibly difficult to prove. Even if someone did get Coronavirus while visiting your business, it would be nearly impossible to trace that illness back to your specific location as the source of their illness. Furthermore, it seems that most attorneys know this, and finding one that would take on a case (investing time, money and resources into it) to go after a business owner with little chance of success would be incredibly difficult.

*Disclaimer: Although this information was accurate as of March 26, 2021 this is an evolving issue that may change in the coming months & years. It is recommended to discuss your matter with a lawyer if you have questions. 

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