Can I Sue a Business in Arizona if I Catch COVID-19 on Their Premises?
By Craig Knapp on April 21, 2020

Sure – a customer could file a lawsuit in Arizona against a business alleging that its premature opening, or irresponsible business practices, caused the customer to catch COVID-19. But the more important question — at least from most experienced trial lawyers’ perspective — is whether such a lawsuit is likely to be successful. Or would it be dismissed soon after the lawsuit’s filing? And then, even if the case does survive these hurdles, what are its chances at trial?

What Do Lawyers Look For In An Injury Case?

Lawyers who represent people for bodily injuries can be thought of as investors in their cases. These lawyers usually earn their fees not on an hourly basis — but on a contingency basis. That is, the law firm is only compensated for its time and services if a settlement or jury verdict is obtained. Then, the attorney earns a percentage. How does the lawyer finance the case in the meantime? Who pays the experts? Who covers the filing fees? The law firm typically does. So, if the case is unlikely to be strong enough to elicit a fair settlement, or prevail in a jury trial, then the lawyer (and the client) are taking a risk if they decide to file a lawsuit. They could lose time, money, and emotional investment. Reach out to our Phoenix personal injury lawyers if you have questions.

Could a Coronavirus Case Against a Business Be Worth Taking?

Suppose that Arizona’s lockdown/social-distancing orders are lifted for additional businesses on a voluntary basis. Suppose that a restaurant opens back up, but fails to take adequate precautions in cleaning its surfaces or monitoring employees for COVID-19 (by checking for fevers at the start of shifts, for example). Imagine that you go to that restaurant, and five days later, you are coughing, you have a fever of 102, and you are short of breath. You end up at the hospital. You are diagnosed with COVID-19. You ultimately require ventilation. You miss work for a month. You have a severe lung injury that persists for months. You later learn that there was a COVID-19 outbreak at that restaurant because of multiple employees who were sick, but still coming to work.

Is that a worthwhile case? In the realm of personal injury law, there are very few absolutes. It is certainly possible that a business could so blatant in its unsafe COVID-19 practices, and the victim so otherwise isolated that no other cause is probable, that the case might be worth investigating.

But we can anticipate at least two main problems with a COVID-19 case: 1) “assumption of the risk” (or “comparative fault”) and 2) “causation.”

Premises Liability Generally

A COVID-19 case against a business, as a customer, might be most accurately considered a “premises liability” case. This is a type of negligence case. That is, the owner of a premises or land can be held financially responsible for a person’s injuries caused by an unreasonably dangerous condition that the owner failed to warn about or fix. This is usually only so long as the owner knew or should have known about the dangerous condition. Our Phoenix premises liability lawyers can help you bring your claim.

COVID-19 Cases Against Businesses in Particular

If we consider the presence of the COVID-19 virus as an “unreasonably dangerous condition” — and it seems it may very well be so — then a business that is not taking adequate precautions could arguably be on notice of the virus’ presence. We call this “constructive knowledge.” That is, although the business owner could not actually see the virus, the argument would be that the owner should have known it was there, given all the media attention and information readily available, and in the absence of taking reasonable preventative measures to ensure it was not.

But, taking a step back, aren’t we all on notice of the dangerous condition invisible to our eyes, but literally plaguing society? If any one of us enters a restaurant under these circumstances, are we not similarly aware of the risk of exposure to COVID-19? And don’t we then assume that risk by going out to dine-in?

Assumption of the Risk and Comparative Fault

This is an actual defense under the law: assumption of the risk. A similar concept is “comparative fault” or “contributory negligence.” Just as someone who enters a batting cage may assume the risk that he might get hit by the ball and suffer injury if he stands too close to the plate, someone entering a densely public place in the COVID-19 epidemic does so with the understanding that it may be a risky behavior. A jury would have to decide how, under such circumstances, the negligence compares (percentage-wise) between the customer and the business, if at all.

We can imagine how a jury might feel, knowing that they themselves stayed inside during this period, adhering closely to social-distancing guidelines. Then here comes this Plaintiff walking into court, demanding the jury to sit in a multi-day trial, asking to be paid compensation for catching COVID-19 due to their own voluntary non-essential actions. A jury might feel that it was unreasonable or careless for a person to go out to eat under such circumstances. Further, that if such a person chose to do it, they were assuming the risk in doing so.

Causation

The other major problem, however, is proving that the business owner’s negligence likely caused the specific plaintiff’s disease. How do you prove that it was that restaurant trip and that business owner’s negligent failures that caused the Plaintiff to catch COVID-19? After all, such a person willing to take that risk on that particular night, is probably the type to have gone out other times during the incubation period of the disease, or prior.

Remember too: it is the Plaintiff, who is bringing the lawsuit, that has the burden of proof. A tie goes to the defense. COVID-19 is a highly transmissible virus. It is understood to be able to go airborne for significant periods of time, just from droplets expelled from other people’s breathing, not to mention coughing or sneezing. So how does the Plaintiff prove that, more likely than not, he or she caught it that night, at that restaurant, due to negligence? That it was not equally or more likely that it was caught from a roommate, family member, or another outing at another time?

In the course of discovery, after filing suit, the plaintiff could reasonably expect to have their entire schedule and living arrangements scrutinized by the defense. Name all the places you went. How long were you there? How crowded was it? What time of day was it? Who were you with? Who do you live with? Where did they go during the days before you started showing symptoms? Did anybody else come to your house during that time? Where did they come from? Who do they live with? The questions could go on and on in this way.

Interestingly, with such discovery efforts, the defense would be doing its own version of COVID-19 “contact tracing,” all to try to offer other plausible possibilities where the virus could have been contracted. And if the customer-plaintiff has multiple other outings, with additional encounters with people in other public or private places at or about the same time as the restaurant visit, then it may be difficult to meet that burden of proof of “more likely than not.”

We Recommend Speaking with a Lawyer — Just in Case!

Notwithstanding the above overview and analysis, we would always recommend speaking with a lawyer about the particular facts of your specific situation. Although these may be tough cases generally, it is certainly possible that the right set of facts would come along that might justify the risk, time, and cost of filing suit and litigating.

No doubt, this is an interesting legal question, and one that is almost certainly going to be litigated in the coming months and years.

Meanwhile, businesses will be faced with an important question of their own: when I reopen, what should I be reasonably doing to protect my customers from COVID-19 spread and, thus, protect myself from liability? This is a separate question, and one which we may address in a future blog post.