By Lindsey Busfield, PMP
Mandated drastically reduced hours, capacity limits and temporary closings are causing many food and beverage businesses to temporarily or permanently close. Many of those who remain open are barely hanging on. As COVID numbers continue to rise and spike in Pittsburgh, many restaurants are fearful of another shut down and how that might impact their businesses.
What is even more worrying is the threat that their staff and customers could catch this disease while working or dining in their establishment. Pittsburgh restaurant owners have a duty of care to protect their employees and guests, but does that extend to safeguarding against COVID-19?
Premises Liability Law
While many states differ on their premises liability laws, in most states the owners or occupiers of a premises have a legal duty to maintain their property in a reasonably safe condition, free from defects or hazards that might harm a person who comes onto their premises. If a dangerous condition does exist, the owner or occupier must either warn others of it or remedy it within a reasonable amount of time. This duty isn’t limited to preventing slip-and-falls, trip-and-falls or food poisoning.
In the context of COVID-19, that means remedying a possibly infectious condition fast and effectively. A bar and restaurant owner can be the target of a lawsuit if there is a belief that a customer became infected with COVID-19 while on the business premises. Masks and other public health mandates must be complied with by business owners and their employees. Other claims or lawsuits might involve delivered food and beverage issues on how paper, plastic and cardboard surfaces might retain the COVID-19 virus and whether a restaurant should disinfect containers before they’re sent out for delivery.
The Burden of Proof
Even if a customer claims that they contracted COVID-19 from a dining establishment and files a lawsuit, that doesn’t guarantee that they will win. If a customer tries to blame a food and beverage business for his or her COVID-19 infection, he or she must still prove their case by a preponderance of the evidence. What that means is that their version of events is more likely true than not true. Given what we know about the virus and people carrying it but being asymptomatic, proving the specific source of a COVID-19 infection can be difficult.
Potential liability for owners and operators of businesses in the food and beverage industry isn’t just limited to customers. In some states like California which recently passed SB 1159, it also extends to employees under California’s workers’ compensation laws. SB 1159 was signed into law by Governor Newsome on September 17, 2020, and under the right circumstances, a rebuttable legal presumption arises that an employee was infected with the COVID-19 virus during the course of his or her employment. If an employee’s COVID-19 infection raises the presumption, the burden of proof would be even lower than a preponderance of the evidence.
At this point in time, there is growing support in Congress for legislation to provide businesses with a liability shield in exchange for businesses complying with national standards of care to prevent the transmission of COVID-19. As of yet, nothing has approached the statutory protection that business owners in the food and beverage industry want.
Lindsey Busfield, PMP is the Senior Project Manager for OptimizeMyFirm. She is actively involved in several community advocacy initiatives in Pennsylvania. She uses her extensive legal knowledge to inform and protect community members and local business owners. You can learn more about Lindsey Busfield at www.OptimizeMyFirm.com.