Virus Liability Claims in Texas
Mark Courtois  - May 15, 2020

       The novel Coronavirus Disease (COVID-19) has been deadly, not only to persons but to Texas businesses.  Government ordered closures and stay-at-home orders required many businesses to close temporarily. On March 13, 2020, Governor Abbott, issued a disaster proclamation certifying that COVJD-19 posed an imminent threat of disaster for all counties in the state of Texas.   As businesses begin to re-open, is there a risk that business owners will face liability claims from employees or customers who think they may have contracted the Coronavirus from contacts with the business?  Given the litigious society we live in, it is probably safe to assume that someone will make a claim that they contracted the virus from a visit to a business.  In general, disease claims are viable under Texas law assuming evidence is sufficient to show liability and medical evidence of causation.  This article explores some of those issues.  

     Premises Liability Claims.  Most persons who enter a business property are invitees.  An invitee is a person who enters the property of another with the owner's knowledge and for the mutual benefit of both. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.1996) (quoting Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975)).  Elements of a premises liability claim as to invitees are: (i) a premises condition posed an unreasonable risk of harm, (ii) the owner or occupier had actual or constructive knowledge of the condition, (iii) the owner or occupier did not use reasonable care to reduce or eliminate the unreasonable risk, and (iv) the owner’s or occupier’s failure to use reasonable care proximately caused the claimant’s injuries. Gillespie v. Kroger Tex., L.P., 415 S.W.3d 589, 592 (Tex. App.–Dallas 2013, pet. denied).  The general rule is that a landowner has a duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.  Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015).  Ordinarily, the landowner need not do both, and can satisfy its duty by providing an adequate warning even if the unreasonably dangerous condition remains.  An owner’s or occupier’s knowledge of a dangerous condition can be actual or constructive. Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014).  Actual knowledge is knowledge “of the dangerous condition at the time of the incident, not merely the possibility that a dangerous condition could develop over time.” City of Corsicana v. Stewart, 249 S.W.3d 412, 413-14 (Tex. 2008). “Constructive knowledge is a substitute in the law for actual knowledge.” CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000).  In premises liability cases, constructive knowledge can be established by showing that the dangerous condition existed long enough for the owner or occupier to have discovered it upon reasonable inspection. Id.  In many cases, but not all, the duty does not extend to warning the invitee of hazards that are open and obvious. Austin, 465 S.W.3d at 203.  When an invitee is aware of a dangerous premises condition, whether because the danger is obvious or because the landowner provided an adequate warning, the condition will in most cases, no longer pose an unreasonable risk because the law presumes that invitees will take reasonable measures to protect himself against known risks, which may include a decision not to accept the invitation to enter onto the landowner's premises.  Id

     But simply contracting the virus does mean someone else is responsible.  Linking the virus to a particular person or business will, in most cases, be extremely difficult to prove.  Linking the virus to a particular business will most likely require expert testimony.  See Smith v. Landry's Crab Shack, Inc., 183 S.W.3d 512, 514 (Tex. App.-- Houston [14th Dist.] 2006, no pet.)(medical evidence connecting alleged food poisoning with the business was required); see also, Black v. Food Lion, Inc., 171 F.3d 308, 314 (5th Cir. 1999) (holding that damages for fibromyalgia allegedly caused by a slip and fall required expert testimony on causation but damages for direct physical injuries did not).  This type of injury is not like a slip and fall where the courts have not required expert testimony on causation because the injury is within the plaintiff's immediate subjective awareness at or about the time of the causative event, such that the causal relationship is obvious or can be inferred.  Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984).  Not only will expert evidence will be required to link the virus of the plaintiff to the business, but it must also link it to some negligence of the business.  That will likely prove impossible in most cases.

​     By now the contagiousness and risks of this virus are well known.  Government officials have been preaching ways to protect oneself from contracting the virus such as staying at home, social distancing, and the use of facial covering.  In fact, is some areas, the use of facial cover in public is mandatory.  We know through public announcements on the disease that a large number of asymptomatic people carry the virus and can infect others.  Theoretically, it might be possible to trace a particular case back to a possible source.  If other cases are linked to that same source, it would give weight to the conclusion that a particular location is the source.  That kind of direct evidence would likely be necessary to show actual cause.

 

    Employee Claims.  Business that carry worker's compensation coverage should be protected from any employee claim arising from the employee's work.  For those businesses that do not carry worker's compensation insurance, there is always the risk of exposure from an employee's claim for a work related injury, including a disease caused by a virus contracted at work.  It is clear under Texas law, that employers owe their workers a duty to provide a safe place to work, and the appropriate equipment and tools to do their job. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 217 (Tex. 2015).  Those tools include personal protective equipment appropriate for the assigned task.  While local or state facial covering orders are still in place, proper tools include facial covering and depending on task, gloves.  These should be provided by employer if the employee does not use their own.  Businesses are encouraged to follow all of the safety protocols required and recommended by the federal and state governments.  Employers without workers compensation can be subject to employee lawsuits for work related COVID-19 just as they can for any other work related injury.  Businesses that have concerns about their liability risk should consult an attorney for a complete review.