Episode 1

Transcript

 

Mike Smith: Welcome to episode number one of Frantz Ward's podcast series, Shoveling Smoke. I'm Mike Smith, a partner at Frantz Ward and I'm hosting today's podcast. As you hopefully heard in our trailer for the series, the title Shoveling Smoke comes from a famous quote by Supreme Court Justice, Oliver Wendell Holmes. We hope to shovel the smoke away and bring clarity to many of the legal issues you face on a daily basis. Today, we're going to talk about one of the potential liabilities your business has to deal with in today's COVID world. If your business has been fortunate enough to stay open or reopen during the pandemic, you know there are all kinds of new hurdles to face, masking, distancing, monitoring. Much of this focuses on how to address the concerns for your employees, but what about the need to protect the people who show up on your premises? What happens when, unbeknownst to you, your COVID positive asymptomatic receptionist interacts with company visitors and one gets sick, then blames you when they get incredibly ill? What happens when one of your waiters knows they're sick, but serves your patrons anyway, and then one of those patrons becomes a super spreader and you get sued for being ground zero? We call this premises liability, because it is liability you potentially face due to people supposedly getting sick or injured while on your property. Here today to provide insight on these issues is my partner, Pat Haggerty. Pat is a founding partner of Frantz Ward and has been our litigation group practice leader for several years. Pat has done it all in the legal world and in the greater Cleveland community. He's been a law clerk for the Cuyahoga County Court of Appeals, he's tried a load of civil cases and he's served as national coordinating council for large companies. Pat also spends a lot of time serving others. He's been a member of Leadership Cleveland, he's served on church parish councils, he's tutored City of Cleveland school children, and has served as Chair of the Legal Aid Society's pro bono committee, taking out pro bono cases himself. Most importantly, he's the proud father of three lovely daughters and the grandfather of Riley. Welcome, Pat.

 

Pat Haggerty: Thanks, Mike. Happy to be here.

 

Mike Smith: So, let's start with the basics. If you were in court, what would you tell the jury the basic elements of a premises liability claim is?

 

Pat Haggerty: I would explain to the jury how they should analyze the case. I would first tell them it's a negligence case, a particular type of negligence case, as you say, premises liability, and they have three questions they have to ask themselves. First is, what is the duty the business owner owed to the injured party? The second question would be, did the business owner breach that duty? That is, did the business owner fail to fulfill her duty? The third question would be, did the business owner's actions actually cause the injury to the plaintiff? I would explain to them that these questions must be answered in the specific facts of the case, they inform all three questions. I would explain to them the first question, duty, really sets the stage for all of the other answers.

 

Mike Smith: So before you get to what that means to the jury here, where does that come from, the whole idea of duty on somebody's property?

 

Pat Haggerty: It comes from a 1928 case. It's interesting, we're now in the midst of the COVID pandemic, once every 100 years, and we're going back almost 100 years to try to figure out how these cases will be resolved. Let me give you the facts of a case called Palsgraf. In 1926, a man was trying to get on a train in the Long Island Railroad. He was running for the train, two employees helped him. One pulled him up, one pushed him up. He got on the train safely, but he dropped his package. His package contained fireworks, they went off. They caused a concussion in the air sufficient enough to dislodge things around the platform. A woman way at the other end of the platform, Mrs. Palsgraf, got hurt when something hit her in the head. She sued the Long Island Railroad and said those two employees' actions were the cause of her injury. The judge, who is a guy named Cardozo, went on to become a Supreme Court Justice, very much revered in the legal community, he set the stage for all of this by saying, "What happened to Mrs. Palsgraf was not foreseeable when you look at what these two employees were doing." So as a result, the Long Island Railroad did not have a specific duty to Mrs. Palsgraf in the context of these facts. That's why this concept of what is the duty is so important for the jury to decide, because it will help them answer the other two questions that I posed.

 

Mike Smith: So let's now translate the idea of duty in COVID world, because that's where we're all about now today.

 

Pat Haggerty: So, the question then is a business owner has a duty to exercise reasonable care to stop or slow the virus from spreading. The business owner doesn't have to guarantee that someone will not contract the virus on the premises, they have to take reasonable steps to make sure that doesn't happen. So, how do you do that? Well, you look at your employees, and you mentioned some of these in the intro here, Mike. You look at your employees. Are you monitoring them? Are they wearing masks? Are they socially distancing? All of those issues. So that's the first step, what are you doing with your employees? The second question is what are you telling your customers to do? Are you warning them about the dangers? Are you telling them to wear a mask? Are you telling them to distance, but also are you providing opportunities for them to distance? I have been in stores where it's impossible to stand at the register without being in the aisle where somebody else is trying to shop, but I've been in stores where there's very clearly demarcated areas, little circles, this is where you stand. So that's what a business owner is doing, she's setting forth the parameters to keep the spread contained. They have to have a plan to do that, so those are the two approaches. What are you doing with your employees? What are you doing with your customers?

 

Mike Smith: So in trying to keep your client out of the courtroom in the first place and focusing on employees, as well as your customers, what are some of the other strategies that you would recommend implementing in order to fulfill the duty and keep out of the courtroom?

 

Pat Haggerty: Well, I'll first start with coming up with a plan, and this is really very important. You have to look at your business, decide what are the risks? What would be the potential risk here based on the size of the duty? The risks are different if you're a carry-out store versus you're a restaurant where you are doing distancing, but you're having people in your store. The risks are differences if you're a hair salon versus if you're a bar. So you have to decide what your risks are, then come up with a plan to best prevent the virus from being spread in the context of your business. Come up with a plan, write it down and then follow it, because if you do ... I think I've tried to answer the first part of your question, how do you stay out of the courtroom? The second part, which I am focused on the most, is if you get into the courtroom, how can I prove that you did all the right things? Well, it starts with a written plan and it starts with a way of monitoring that plan, so I can hold it up to the jury and say, "Here, remember the three questions I asked you? I can answer all of your questions by what my client did, and I can prove what my client did. Not by what she says she did, but what she documented every day, every week, every month. So, I can help you answer those questions by looking at what my client did a year ago or a year and a half ago by the time the case comes to trial."

 

Mike Smith: So, is there a point when you can tell your client that they've done enough? How do they know when they've done enough to fulfill the duty?

 

Pat Haggerty: Well, reasonable is the catch phrase here. I mentioned that in the very beginning when I was talking about what Cardozo said. It's what is reasonable under the circumstances. That is where I would say lawyers, but also thinking people help realize that. What's your circumstance? How can you take reasonable measures? I can tell someone if they've done the things that are suggested to them by institutions and governmental entities, like the CDC. The Center for Disease Control has published a lot of information, so the business owners should refer to that website and see if they are following the dictates. Now, a potential problem here is that there are many different sources. There's the CDC, there's the state of Ohio, there's a Cuyahoga County if you live here, or Lorain County, whatever county you live in, whatever state you live in. All of those directions are not always uniformly consistent, but you must look at them, you must follow the ones that you think apply to your business. If you do that, I would say you have done a lot and probably enough to demonstrate that you have slowed the transmission of the virus, or at least you've taken reasonable steps to do just that.

 

Mike Smith: Going back to the courtroom again and talking to the jury, don't people have a responsibility to protect themselves? Doesn't the customer have that responsibility? How does that fit in?

 

Pat Haggerty: Yeah, you're talking about something in the law is called comparative negligence. Remember, I said at the outset we're talking about a negligence case. I would tell the jury, we're not going to just focus on my client, we're not going to just try to decide whether she was negligent, let's look at the injured party, the plaintiff, and decide whether he was negligent or she was negligent. So, you would compare the negligence and the jury is actually asked to come up with percentages, how much to the business owner, how much to the plaintiff. If you can demonstrate, or if I can demonstrate that the injured party of the plaintiff was more than 51% at fault, then the business owner, even if they may have done some things less than perfect, would not have any liability. So, that's the concept of comparative negligence. To put it in the COVID context. You tell someone when they go into a bar, wear your mask and then you see that she's taken her mask off and she's huddling around four or five friends and they all have their mask off. Well, if you tell them again, "Hey folks, I said when you're not actually actively drinking your beer or drinks, please put your mask on and still do some distancing." If they refuse, then the argument would be they have contributed more than 51% to the possible spread of the virus.

 

Mike Smith: So, when you're talking about duty and reasonableness and now the comparative negligence or the conduct of the person who's going to be the plaintiff, the patron or the customer, it sounds like these are going to be tough cases to prove in court. You think people would be dissuaded from bringing these kinds of cases?

 

Pat Haggerty: So, I want to just kind of put it in the legal context. You're talking about causation, that was the third of the three questions I wanted the jury to consider. Did the actions of the business owner actually cause the injury? So in the context of causation, you are absolutely right, these will be tough to prove. If I were the injured party, I would have to prove that I contracted the virus on December 31st when I walked into the beer and wine store to buy some beverages to celebrate at home that night with people in my bubble. That's pretty hard to demonstrate, because you have a 10 or four day, we don't even know exactly what the incubation period is. When do the symptoms start to show? Where did you go for those other 14 days? If you could demonstrate that you went nowhere else, you have a shot at proving that you contracted the virus at store X, but those are very hard to prove. But that's not going to stop plaintiff's lawyers and other people from pursuing these claims. We live in a very litigious society. We live in a society where if I want to bring a lawsuit and have a lawyer bring it for me, she won't charge me unless we win, so there's almost no risk to me to bring the lawsuit. If you Google lawyers who are asking to bring these cases, you'll find they're already out there looking for cases. So there will be cases, but they will be a difficult hurdle to prove.

 

Mike Smith: So as long as the store owner takes the reasonable steps that we've talked about today in trying to prevent the spread of the virus, is that the end of the inquiry? I mean, should they be fine at that point?

 

Pat Haggerty: This goes back to what is the duty? So, what is the danger or what is the harm that this store owner has to prevent? First, we've been talking all this time about the duty being to stop the spread of the virus, that's your duty. Well, and how do you know if you've done it? Well, what's foreseeable? So, this concept of foreseeability now plays into a whole new possible danger. I Googled, right before we started talking, the phrase violence about masks. In 0.4 seconds, I came up with 52,000 hits about stories about violence in the US related to masks. So there are questions like where a guard tells someone please wear your mask, and the person knocks the guard down. Other customers form a ring around somebody without a mask shouting, "Wear your mask, wear your mask," and then punches are thrown. Someone pulls a gun when a guard tells him to wear a mask. So, this issue of is it foreseeable that violence could erupt when you're trying to enforce your distancing and masking policy? I would have to say now based upon my Google search and also reading about things for the last several months, that it is certainly foreseeable. So then the question is, what duty do you have, what steps should you take to fulfill that duty that would relate to violence? If you go on the CDC website, they have a link dealing with confronting violent situations, how to deescalate the violence. So that's something that, again, is based upon how likely is your business to have this kind of violence. If you think given the kinds of examples that I've already given, that could happen in your store, then you would have an obligation to do some training to your employees to make sure that they are deescalating the violence. Recently, there was an issue in a hotel in New York. It was not COVID-related, but a woman accused a young man of stealing her cell phone. The incident went viral, he obviously hadn't stolen it, and at the end of the day, it was the hotel that seemed to be getting a lot of heat, because the manager of the hotel had not appropriately deescalated the violent situation. So, that shows the increasing obligation of property owners to give training to their employees to how to deescalate violent situations. So in our context, if you think your business could have a situation where some violence would occur over distancing or masking, then you should consider giving some type of training to your employees. Links to that can be found on the CDC website dealing with COVID-19 issues.

 

Mike Smith: Sounds like we've come a long way from the train station back in the '20s, huh?

 

Pat Haggerty: Yeah, I would say so, but more fireworks to come, so to speak.

 

Mike Smith: Well, one of the things that we're trying to do with this podcast is to focus on two or three takeaways for our listeners. Given that idea, if you could just give us a thumbnail of what you think people should take away from today's discussion.

 

Pat Haggerty: I'd say there are three takeaways. One is start looking at your business, evaluate the dangers, evaluate the risks that you think are reasonably foreseeable based on the business you run. They're going to be different for a bar versus a restaurant versus a hair salon. They're going to be different, so evaluate them. Then second, come up with a written plan to address them and monitor the fact that you are complying with that plan. The plan should include how you deal with your employees, how you deal with customers, and I would suggest you also address the issue of possible violence. Either say it's not foreseeable, you've given thought to it, or if it is in your mind foreseeable, how you would address it. The third thing would be to follow the plan and document compliance, so that should you be hauled into court, which is the expression, I can hold up your plan to the jury and say you did everything that was reasonable under the circumstances.

 

Mike Smith: Well, Pat, I appreciate your time today. I think we're going to be seeing a lot of this litigation in the short-term.

 

Pat Haggerty: It's certainly possible. I'm happy to be here, thanks for having me.

 

Mike Smith: Thanks again, and thanks for you all out there who are listening. Just to wrap it up. Three takeaways from today's discussion with Pat Haggerty. It's know and understand your own business, make a good plan for dealing with the COVID issues and then follow through on that plan. So, we look forward to talking with you next time. Shoveling Smoke is a production of Evergreen Podcasts. Our producer and audio engineer is Sean Rule-Hoffman. Thanks for listening.