Business Matters Liability Concerns Entering Phase 2

COVID-19 General Liability Concerns for Restaurants and Bars as Florida Enters Phase 2

by JENNIFER SMITH THOMAS, PARTNER, RUMBERGER | KIRK

On June 3, 2020, Governor Ron DeSantis announced that Florida (exclusive of some South Florida counties) would enter Phase 2 of the ReOpen Florida Task Force’s Plan for Florida’s Recovery, in pertinent part permitting restaurants to open at 50% capacity indoors exclusive of employees. Restaurants may open outdoor seating, the only limitation being “appropriate social distancing.” Executive Order 20-68 modifies earlier Executive Orders and took effect on June 5.

Since March, business owners, particularly restaurants and bars, have faced great but predictable challenges to their day-to-day operations in light of stay-at-home or shelter-in-place orders. Some less anticipated challenges include liability and ongoing lawsuits from employees for failure to provide PPE, not permitting employees to wear PPE, requiring employees to return to work, workers’ compensation claims and wrongful termination claims. With more and more patrons and consumers returning to their favorite local establishments, bar and restaurant owners are left asking: What exposure do they have for customer claims of exposure to COVID-19 at their premises?

Some states have predicted such claims, and in an effort to allow businesses to reopen without fear of liability for COVID-19 concerns, they have passed or proposed legislation insulating businesses from liability from civil claims related to COVID-19. North Carolina, Oklahoma, Utah and Wyoming have passed laws that provide some immunity for premises owners from civil claims related to COVID-19. Similar bills have passed the Louisiana House and Senate, the Kansas Senate and the Arizona House. However, no such legislation has been passed in Florida, and further, tort reform was not included in the Task Force’s report to Governor DeSantis. Accordingly, restaurants and bars will be charged with safeguarding their premises in accordance with existing Florida law.

In Florida, a premises owner owes a business invitee a duty to maintain its premises in a reasonably safe condition and further, warn of known dangers or dangerous conditions. Possible negligence claims related to COVID-19 in restaurants and bars may turn on the foreseeability of the condition, the adequacy of a warning, and the reasonableness of the safety measures the premises institutes to avoid transmission of or exposure to the virus.

Bars and restaurants should ensure compliance with all applicable federal, state and local guidelines and preferably maintain regular written documentation of such compliance. Available resources for restaurants and bars include the National Restaurant Association Reopening Guide (updated May 22, 2020) available here.

The FDA has provided a food safety checklist for best practices for reopening retail food establishments during the COVID-19 pandemic, available here.

Finally, business can always check Rumberger|Kirk’s growing library of articles developed by its COVID-19 Task Force.