By Christopher Kercher, Andrew Rossman, Brian Timmons and Jonathan Feder

Law360 (March 19, 2020, 6:00 PM EDT )

Christopher Kercher

Andrew Rossman

Brian Timmons

Jonathan Feder

As the coronavirus pandemic reshapes vast swathes of the American economy, some retail businesses have fallen into a gray area.

Arenas, clubs, halls, restaurants and bars around the country have been ordered or strongly advised to close, while essential retailers like supermarkets have been urged to stay open. But other retail storefronts, though hard hit by the reduction in foot traffic, have largely gone without clear official guidelines.

Increasingly, large retailers like Macy's Inc., Apple Inc., Nike Inc., American Eagle Outfitters Inc., L Brands Inc., Urban Outfitters Inc. and Tapestry Inc. have begun to voluntarily close all stores nationwide. Others are still considering how best to serve their customers during this crisis. Reduced hours, restrictions on the number of concurrent shoppers, contactless curbside pickup and special hours for especially vulnerable populations are among solutions being tested.

The duty of care owed by a retailer to its patrons is amorphous, depending on societal norms, with reference to, among other things, government guidance and industry standards. The governing standards during this pandemic are thus evolving.

Businesses need to consider many factors, including the health and welfare of employees, customers and the general public, in the absence of official guidance. We propose a framework for retailers to take into account potential future tort liability.

1. What steps should a retail storefront take to protect its guests?

Stay Informed

Retailers should stay informed about the spread of the virus by following government reports, known or potential exposures by employees or customers, and any other reason to believe that individuals are at any greater risk of being infected at its premises.

Businesses should warn employees and guests of known risks, and therefore it may be wise to consider how all potentially affected patrons will be notified if any new information arises.

Warn Guests

A business generally must warn its guests of known dangers. Although this duty with respect to the novel coronavirus may be mitigated by the extensive media coverage, we think that every business that chooses to stay open would be well-advised to place a clear, visible warning to guests on premises.

Consider advising guests of the local prevalence of COVID-19, and that the risk of infection cannot be eliminated. Advise guests to keep a distance of at least 6 feet from each other, not to touch their faces, and to wash hands regularly.

In many states, adequate warnings will be considered sufficient to protect business guests from dangers, especially when the risks are considered known and obvious. However, given the difficulty of completely avoiding infection and the high standards being set for businesses during this crisis, courts may later find that more was required, including reasonable preventative measures.

• In Coyle v. Historic Mission Inn, the California Fourth District Court of Appeals held a restaurant in California was properly found liable for a black widow spider bite because black widow spiders were a known geographical risk and the restaurant failed to protect its patrons.

• When a Cornell University student took his life by jumping off a bridge, the U.S. District Court for the Northern District of New York decided in Ginsburg v. City of Ithaca that the city might be held liable due to the apparent failure of its bridge redesign to stem the foreseeable tragedy.

Take Reasonable Preventive Measures

The novel coronavirus is a hidden danger, and albeit known, guests only have limited ability to protect themselves. Businesses would thus be well-advised to implement additional measures to protect guests.

The steps recommended by official agencies, industry groups and the actions of competitors should be considered in shaping the proper response to the evolving pandemic.

• CDC guidelines recommend enhanced hygiene protocols such as no-contact greetings, cleaning hands at the door, increased use of noncash payment methods, increased ventilation, regular disinfecting and taking measures to stagger customer flow.[1]

• State health authorities also post regularly updated guidance.[2]

• Industry groups such as the National Retail Federation and the National Grocers Association, among others, maintain regularly updated coronavirus recommendations on their web pages. Consider following guidelines to post informational signs and hand sanitizer, provide disinfecting wipes for carts and baskets, train employees on recognizing and responding to signs of illness in customers, mandate that employees regularly wash their hands, reconfigure stores and retrain employees to avoid close contact with and between customers.

• Businesses should also pay close attention to the actions of their peers, which are often taking more aggressive measures than official and industry recommendations. Consider the actions being taken by competitors and their rationales for those steps. For example, Stop & Shop Supermarket Co. added early morning hours for those age 60 and up, to help protect that population from the more crowded conditions during normal business hours. Retailers should consider whether they can take similar measures to protect more vulnerable populations.

The virus is currently reported to travel person to person by two known means — on surfaces and between people in close contact. Consider implementing some of the following additional measures to help protect patrons and mitigate potential liability.

Regularly Disinfect Premises

The virus is reported to live on surfaces and then infect people who touch those surfaces and then touch their faces. If the virus is not present at a particular store location, it will help keep customers safe and make it difficult to later blame the retailer for spread of the virus.

• The California Fourth District Court of Appeals dismissed claims in Miranda v. Bomel Construction Co. Inc. that an uncovered mound of dirt spread the valley fever and noted: "Valley Fever spreads much like other naturally occurring illnesses. One can have suspicions, but without scientific data tracing the source, one cannot be sure who infected him or her with a head cold or stomach flu."

• A claim by an infected patient that a hospital negligently allowed its premises to become "infested and infected" with Legionnaire's pneumonia virus was allowed to proceed by the Supreme Court of Indiana in Methodist Hospital of Indiana Inc. v. Ray.

Create Distance

The other known means by which the virus travels is through droplets excreted from one person (e.g., by a sneeze or cough) onto another in close vicinity. Businesses should consider introducing measures to provide for 6 feet between people on its premises.

Retailers that serve especially prone populations (e.g., the elderly and sick) should consider developing additional measures to protect their customers — perhaps adding and incentivizing delivery options, curbside pickup and additional shopping hours, as well as extending return periods so that customers can avoid crowding and reduce shopping trips during this pandemic.

Some retailers are creating distance by controlling how many customers enter at once. This might be advisable, but owners should also consider that they are potentially liable for conditions at the entrances to their stores, regardless of who owns those spaces. Ensure that measures taken to protect customers in the store do not lead to crowded and possibly dangerous conditions outside the location.

Should retailers close storefronts?

Many retail businesses have chosen to join the global fight to stop the spread of the novel coronavirus by temporarily closing storefront locations. For most retailers, though, this is a difficult decision yet to be made, for economic reasons, public policy or both.

Many small businesses simply cannot afford to close. Retailers are looking for alternatives with online, delivery and/or quick pick up options. In the meantime, governments have been hard at work reassuring citizens that essential stores like supermarkets will remain open, no matter what.

Whether a business may later be held liable for virus-related harm allegedly caused on its premises solely because it remained open may result in important questions of public policy being decided by the courts. Consider two competing public policy doctrines: assumption of risk and abnormally dangerous activity.

Assumption of Risk

Historically, courts have been reticent to find that an activity is so inherently dangerous that businesses cannot even operate without liability. Operators of sports and recreational activities, for example, have been shielded from liability arising from the known and obvious dangers that participants of such activities accept by partaking.

When a tennis player slipped and fell on the shell of a dead cicada bug, New York's Second Department Court of Appeals in Petriano v. Southgate at Bar Harbour Home Owners Association refused to hold the owner of the tennis courts responsible. The player saw the bugs on the court before she started playing and therefore assumed the risk inherent in the game given the condition of the courts.

However, this protection from liability has not been widely extended beyond recreational activities. As a public policy exception, its application may be heavily dependent on the evolving guidance from health authorities, which have been falling in line to ask businesses to reduce capacity or close altogether.

Abnormally Dangerous Activity

As an exception to the general rule that fully informed guests cannot hold a business liable for their foreseeable harm, if the business is found to be carrying on an abnormally dangerous activity, it may be liable to anyone harmed regardless of circumstances. Whether an activity is "abnormally dangerous" is determined in reference to, among other things, community norms and values. The outcome of any future case might not be easily predictable from past precedent.

In July 2012, an Indiana man went for a swim in a warm water lake. He contracted a rare and fatal disease from a parasitic amoeba that entered through his nose and into his brain. According to the CDC, all swimmers in warm freshwater should assume there is a low level risk of such an infection, though known instances are extraordinarily rare.

The Indiana Court of Appeals in Daviess-Martin County Joint Parks & Recreation Department v. Estate of Abel by Abel found that the landowner could not be held responsible to protect guests from the rare naturally-occurring parasite. Among other things, public policy prevented converting landowners into insurers of their guests' safety.

A month later, in August 2012, a 9-year-old boy contracted an infection from the same parasitic amoeba in a Michigan lake. In Ariola v. City of Stillwater, the Minnesota Court of Appeals allowed a suit to proceed against the owner of that lake because the landowner knew about the condition and failed to warn, and the condition was considered a hidden danger.

What advice should essential service providers like supermarkets follow?

Stay informed, warn and protect. For supermarkets, pharmacies, hospitals, physician offices and similarly essential service providers, closing may not be an option. We think that following our guidance above to keep guests as safe as possible while informing them of all known risks is the best way for these businesses to avoid potential future tort liability.

We expect that essential retailers, assuming they follow best practices to reasonably inform and protect their guests, may limit liability for infections allegedly originating on their premises. These businesses would be well advised to document the steps they are taking now to protect visitors. This may be a tall task in the middle of a crisis, but it can make all the difference if they are later forced to rely on an unreliable memory of events from the chaos of a pandemic.

What advice should other retailers follow?

Ultimately, retailers facing potential liability based on a decision to remain open will be judged against the hypothetical reasonably prudent person in the same circumstances. Courts will look to government guidance, industry best practices, the actions of similarly situated businesses, and other points of reference to determine how the prudent person should have acted.

We recommend carefully tracking a point of reference that courts might find more salient than others: their own actions. As courts increasingly scale back activities and/or close altogether, judges might be less friendly to businesses that stay open without taking increased precautions while the judges' own courtrooms were closed. Those same judges though, may have visited a grocery store or other retailer, and been thankful that it stayed open to serve customers during this crisis.

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Christopher Kercher, Andrew Rossman and R. Brian Timmons are partners, and Jonathan Feder is an associate at Quinn Emanuel Urquhart & Sullivan LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. 

[1] These guidelines are updated regularly and posted at coronavirus.gov.

[2] Check for updated guidance at coronavirus.health.ny.gov, cdph.ca.gov/covid19 and the applicable websites of other state and local health authorities.

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