As the state enters phase three of its reopening, consumers and business owners alike are wary of the risks. Many business owners want to navigate government guidelines to open as safely as possible while also being mindful of any potential legal liability associated with customers who may get COVID-19 on the premises. Some places, like gyms, are asking people to sign a waiver to re-enter their space. WGBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and WGBH News legal analyst Daniel Medwed about liability and the legal concerns surrounding reopening. The transcript below has been edited for clarity.
Joe Mathieu: So before we dive into this topic of liability here and how legal liability would work without them, could every business be liable for money damages if customers contract COVID-19 on their premises?
Daniel Medwed: Not necessarily. Legal liability varies from state to state based on how tort or personal injury laws operate in a particular jurisdiction. But there are some basic overlapping principles.
First, companies are not generally subject to what's called strict liability. They can't be on the hook for each and every illness or injury sustained by a customer. Typically, the injured party has to prove at least negligence — that the company did not exercise a reasonable level of care. Second, even if you can show negligence — that the company didn't exercise that reasonable level of care — you also have to prove what's called causation, that that negligence actually resulted in the harm. And in the COVID-19 context, that might be a tough row to hoe for a lot of customers, given our woeful contact tracing program and just the nature of this virus, how contagious and widespread it is. It might be difficult to pinpoint the origin of your illness and pin it to a particular business. Third and finally, a lot of states have passed laws in the last four months designed to limit legal liability for particular businesses or industries as a matter of law.
Mathieu: What kind of laws have we passed here in Massachusetts?
Medwed: Well, we've passed a few. The most pertinent one was passed in April, and that exempted health care workers from civil negligence lawsuits related to COVID-19 injuries. Notably, that law broadly defined health care workers to include mental health professionals, social workers, students and trainees. There's also been talk of a federal law in the offing this summer that would create a safe harbor for a lot of businesses, including universities and colleges, that would exempt them from these lawsuits so long as they follow state and federal health guidelines. We're going to have to stay tuned for that, see how that plays out.
Mathieu: These waivers, Daniel, are popping up in a variety of businesses nationwide. Are they legally enforceable? If you sign one, are you really giving up your right to sue?
Medwed: Well, it depends. So some state courts, including in Connecticut, have tended to refuse to enforce liability waivers as a matter of principle. They've just turned them down. Other states like Massachusetts have courts that have often enforced these liability waivers, if you waive your right to a simple negligence lawsuit. But if you can establish that the behavior was extremely negligent — it's called gross negligence in legalease — or that the behavior was intentionally harmful, then typically you can bypass the liability waiver and get to court.
At bottom, I think that's the key issue in Massachusetts. What behavior will rise to the level of gross negligence and allow a litigant to circumvent any liability waiver? If a business fails to follow CDC and Commonwealth guidelines, is that gross negligence or just simple negligence? What if you adhere to social distancing guidelines, but don't have a solid face mask policy? Simple negligence or gross negligence? These are really important questions that may ultimately be answered in our courts.
Mathieu: Well, there's a lot there. Have we seen a lot of cases challenging these liability waivers or is it too early here, Daniel?
Medwed: It's too early, Joe. These cases are still percolating through the system. I saw some data indicating that there've been about 3,100 COVID-19 civil lawsuits in the first half of 2020. The overwhelming majority of them are insurance disputes, civil rights lawsuits [and] challenges by prisoners. I think fewer than 100 related to personal injury actions. That's bound to change, regrettably, as things open up across the country and more of these lawsuits begin to be filed.
