Wisconsin Independent Agent August 2020 Magazine

Page 22

VIRTUAL UNIVERSITY

DOES REQUIRING CUSTOMERS TO WEAR MASKS HAVE ANY EFFECT ON LEGAL LIABILITY? States are in various stages of reopening following months of COVID-19 lock downs. As the states progress through the phases, businesses are making key decisions regarding masks, should masks be required or optional? Some legislatures have taken the responsibility for this decision away from business owners and are requiring masks be worn; but other states leave the decision to the business owners. In states where the decision rests with the business, some operations have made the corporate decision to require masks be worn by all who enter the premises. From a legal liability perspective, is this necessary? Legal Liability Legal liability is liability imposed by the court or regulators on the person or entity legally responsible for injury or damage suffered by another party. Such legal obligations (or liability) can arise from intentional acts, unintentional acts, contracts (express or implied) or regulations. Legal liability generally focuses on civil wrongs but can include criminal wrongs. “Legal liability” exists when: • The wrongdoer is found guilty of “Negligent Conduct” (breached the duty owed); • The injured party suffers actual damages; and • The wrongdoer’s “negligent conduct” is the proximate cause of the injury or damage. A key requirement towards proving “negligent conduct” and ultimately legal liability is proving that the supposed tortfeasor (the wrongdoer) has or owed the injured party a specific duty of care and breached or failed to satisfy that duty. The degree of care owed to an injured party is based on the relationship between the wrongdoer and the injured party. The greater the degree of care required or expected, the lower the threshold for breaching a duty owed (it is easier to breach a duty when greater care is required). Courts generally recognize four degrees of care or “levels” based on relationships are: • Slight Negligence: A high degree of care is required; • Ordinary Negligence: Requires “reasonable” care such as would be provided by a reasonable and prudent person; • Gross Negligence: Very little care beyond slight care (not to be confused with slight negligence) is required. This is represented by a deliberate or reckless disregard of a duty to exercise care which is likely to cause foreseeable and significant harm; and • Negligence per se: A breach of duty because the law says it is. Negligence per se requires: 1) the at-fault party to violate the law, 2) the law to pertain to public safety, 3) the violation of the law be the cause of the injury, and 4) the injured person be a 22

| AUGUST 2020 |

wisconsin INDEPENDENT AGENT

part of the class of persons the law was designed to protect. In a business/customer relationship, the business generally owes the customer a duty of reasonable care. While there are certain business relationships that increase the duty owed (such as that owed by an operation transporting passengers in a vehicle), reasonable care is the most common duty owed. For sake of this review, assume the business owes a duty of reasonable care. Examples of duties owed by business establishments under the concept of reasonable care include repairing/correcting known hazards; warning against intrinsic/unrepairable hazards; and taking steps to avoid preventable hazards. Consider the example of a restaurant that has several sets of steps in the path to the dining area, where a member of the wait staff has spilled some water and where the plate comes out of the oven very hot. Reasonable care in such a restaurant might include actions such as the person showing the customer to a table warns of the steps (“watch your step”), the wait person puts up a little yellow sign warning of the wet floor, and the person delivering the food says, “Be careful, the plate is hot.” These are examples of reasonable care. Let’s return to the question of masks and legal liability associated with requiring or not requiring them. For this discussion, the injured party moves from a restaurant (it’s hard to eat while wearing a mask) to a retail location. From the perspective of reasonable care, are masks necessary to avoid legal liability? (Note, this discussion does not and will not address the availability or applicability of liability insurance coverage. Only the concept of legal liability regarding customers in a typical retail setting is addressed in this article.) Effectiveness of Masks Before exploring the relative differences in legal liability between requiring masks and allowing customers the option, the purpose and effectiveness of masks must be considered. Discussions focused on the effectiveness of masks may be more complicated than the concept of legal liability because of the emotions and the lack of clear information surrounding the wearing of masks. Purpose: The Centers for Disease Control (CDC) and the World Health Organization (WHO) both state there are essentially two “grades” or levels of masks: 1) those that filter out the virus designed to protect the wearer from contracting the virus and prevent the wearer from spreading the virus; and 2) those intended to prevent the wearer from spreading the virus, but that do not necessarily prevent


Turn static files into dynamic content formats.

Create a flipbook
Issuu converts static files into: digital portfolios, online yearbooks, online catalogs, digital photo albums and more. Sign up and create your flipbook.