Reopen and get sued? Some small business owners fear exposure to liability issues upon reopening their doors

·7 min read

After starting out as a chef with no formal training and opening a vegan restaurant in a state known for steak, Rebel Mariposa has found a risk not even she dares to take.

The chef-owner of San Antonio’s La Botanica will not reopen her restaurant on Friday when Texas’ stay-at-home order expires and the state’s economy begins to awaken.

To Mariposa, lifting restrictions at this stage of the COVID-19 pandemic is premature. With the state’s infection rate still yo-yoing, testing not yet widely available and many public health officials advising against reopening, Mariposa argues Texas Gov. Greg Abbott should have extended the lockdown into May.

While keeping La Botanica’s six employees safe is most important to Mariposa, that’s not her only reason for hesitating to reopen. A lawsuit from a customer who claims to have become infected at her restaurant could force La Botanica to permanently close and leave Mariposa in financial ruin.

“If you add any other fee right now, it would crush us,” said Mariposa, whose given name is Rebeca Lopez. “We’re trying to cut down costs. We don’t know if we’re even going to be able to make it through the pandemic yet.”

San Antonio restaurant owner Rebel Mariposa is concerned about reopening in the midst of the coronavirus pandemic. (Courtesy of Rebel Mariposa)
San Antonio restaurant owner Rebel Mariposa is concerned about reopening in the midst of the coronavirus pandemic. (Courtesy of Rebel Mariposa)

Mariposa’s concerns mirror those of many restaurateurs and business owners in states that are beginning to restart their economies. They fear losing their businesses if they don’t soon open their doors soon, yet they also worry about endangering their workers and exposing themselves to liability risks if they do.

In order to hold a business liable, an infected customer would first have to prove that is where transmission of the virus occurred. Attorneys who specialize in tort law told Yahoo that will be a difficult hurdle to overcome unless the customer can somehow prove he or she didn’t have contact with anyone else during the coronavirus’ incubation period of up to two weeks.

“How would you know that you got it at the gym or the barber or wherever versus anywhere else you were during that time?” USC law professor Gregory Keating said.

Keating conceded that there are certain circumstances that would make it more plausible for plaintiffs to pinpoint a specific moment of transmission. Maybe a dozen people from the same community begin showing symptoms within days of one-another and they all are members of the same gym, attended the same conference or received haircuts from the same barber.

In such instances, that business potentially could be found liable if the infected customers can show that employee negligence was a contributing factor. Business owners can guard against that outcome by taking great care following the industry guidelines established by the Centers for Disease Control and Prevention or public health officials.

The problem for business owners is that they don’t have to lose a lawsuit for it to be crippling — or even catastrophic. It can cost tens of thousands of dollars in legal fees to defend oneself against a lawsuit that is too flimsy to win yet still strong enough to survive a motion to dismiss without a trial.

“If you get past the motion to dismiss, then you have discovery and a jury trial and the lawyer bills really start piling up,” said Michael Krauss, a George Mason law professor specializing in tort law and legal ethics. “Some plaintiff lawyers exploit that with what they call nuisance suits intended just to get a settlement. In those cases, the settlement will be cheaper than paying a lawyer to successfully defend the suit.”

In the past month alone, all sorts of COVID-19-related lawsuits have already popped up. Workers suing employers. Inmates suing the Corrections Department. Passengers suing cruise lines. Businesses suing insurance companies. Heck, even U.S. states suing China.

It’s likely the litigious trend will only get worse with businesses reopening and the pandemic still nowhere near under control. Put the words “coronavirus” and “lawyer” into a search engine, and you’ll find personal injury attorneys itching to pursue a wrongful-death case and provide the “justice and full financial compensation” you and your family “deserve.”

Given the deluge of advertisements like those, it’s no wonder that government officials are reportedly hotly debating the merits of a “liability shield” that would prevent businesses from being sued by customers who contract the coronavirus. According to the Washington Post, Republicans want the “liability shield” to be part of the next stimulus, while congressional Democrats warn it could allow businesses to escape consequences for reckless practices.

“It’s a balancing act,” Los Angeles attorney Sevan Gobel said. “Once you start going down the path of lawsuits concerning COVID-19, you’re putting the risk of being sued and having to pay legal fees on businesses that are currently struggling as it is. But then the other real concern is on the other end. If you do give businesses complete immunity, is that going to lead to lax safety standards that could endanger the public?”

With no law yet in place to shield them from being sued by customers, business owners in states that are partially reopening must assess how to guard against liability risks.

Renowned chef Hugh Acheson did not open any of his three Georgia restaurants on Monday despite the state’s decision to relax its coronavirus restrictions and allow some businesses to serve customers. In addition to concerns about jeopardizing the health of his employees and accelerating the spread of the virus, Acheson said the threat of customer lawsuits “certainly played a part” in his decision too.

Acheson hopes to open his restaurants in the next month once he has devised guidelines to operate safely and to limit the spread of the virus. Without that, Acheson said, “You are really open to lawsuits.”

“I think there is real liability there,” he added. “Not just legal costs.”

Dallas restaurateur Shannon Wynne (Courtesy of Shannon Wynne)
Dallas restaurateur Shannon Wynne. (Courtesy of Shannon Wynne)

On the other side of the debate is Dallas restaurateur Shannon Wynne, founder of the Flying Saucer Draught Emporium and co-owner of restaurants in six different Southern states. He describes the risk of a customer lawsuit as low on his list of concerns as he prepares for the reopening of his Texas restaurants on Friday.

Wynne, 68, readily admits that he wouldn’t yet dare visit a restaurant for a meal. Calling it a “foolish risk” for someone his age with the pandemic not yet under control, Wynne said, “I’ll have Uber bring my food and I’ll wipe it off, but I’m not going to go out to eat it.”

Asked why he’d reopen his restaurants then, especially when they won’t approach profitability at 25 percent capacity, the allowance through at least May 18, Wynne cited several reasons. His employees need money and want to work. He wants to maintain brand awareness. And his staff needs practice upholding the new guidelines.

At each of Wynne’s restaurants, an employee will stand at the front entrance keeping count to make sure they’re never above 25 percent capacity. Customers will order from a scaled-back menu. Everyone from bartenders to servers to line cooks will wear masks and gloves and will focus on keeping everything wiped down and clean.

“We’re going to follow the guidelines to a tee,” Wynne said. “If we act responsibly and do our jobs as we’re supposed to, I don’t think we’re opening ourselves up to any liability.”

Mariposa isn’t as certain as Wynne, which is one of many reasons why San Antonio’s hub of vegan cuisine for now will not even offer takeout. For at least two more weeks, La Botanica won’t be serving up any delicious empanadas stuffed with potatoes or beans or any refreshing Mezclaritas. Nor will it be hosting any of its usual drag shows, live music or karaoke nights.

The date that Mariposa is tentatively targeting to reopen her restaurant is May 21. By then, she is hopeful that the infection rate in Texas will have declined, testing will be more available and the risk of exposure for her customers and staff won’t be so high.

“If we have to stay closed more than a month, we might not make it,” Mariposa said. “I’ve trusted my gut many times as a business owner, and I’m going to continue to do that.”