Personal injury plaintiffs’ lawyers have found a new niche market in the wake of the global pandemic. They are filing lawsuits against hotels and other establishments for negligent exposure to COVID-19 when customers claim they contracted the virus while on their property. Although it is too early to know how these claims will play out in court, hotels should know both how to protect themselves from legal liability and defend against these claims.

Theoretically, there is a possible legal cause of action against any business for negligently exposing patrons to COVID-19. In the early days of the pandemic, plaintiffs (including employees) regularly filed lawsuits against businesses when they claimed to have contracted COVID-19 at an establishment or workplace. These lawsuits were filed notwithstanding the fact that COVID-19 guidance from the U.S. Centers for Disease Control and Prevention had frequently changed, and the early days of the pandemic were filled with unknowns.

What Plaintiffs Must Prove in a Negligent Exposure Claim

Negligent exposure cases are like any other personal injury case with regard to the legal standard. The plaintiff must prove:

  • A duty of care existed
  • The defendant breached that duty
  • The plaintiff suffered an injury
  • The defendant was the proximate cause of the injury

How Hotels Must Exercise Reasonable Care to Prevent the Spread of COVID-19

A hotel owner would be expected to use reasonable care to prevent the spread of COVID-19 in their establishment. These steps could include:

  • Making sure employees wear masks;
  • Cleaning all surfaces;
  • Ensuring social distancing of guests; and
  • Thoroughly cleaning rooms between guest stays.

The hotel would be expected to remain informed of the latest CDC guidance and implement it quickly to protect guests. The fact that the guidance has changed frequently has given plaintiffs an opening to complain that hotels acted unreasonably when they did not strictly follow guidance the moment it was issued. Additionally, hotels which issued COVID procedures should enforce their own safety protocols because otherwise, it appears that they knew what was safe and ignored their own rules and procedures.

Difficulties in Proving Negligent Exposure Claims

In a negligent exposure claim, the court would have to determine what would be considered unreasonable conduct that would rise to the level of negligence. Is it the difference between an employee having their mask down versus not on at all? The key question would be whether a judge or a jury would consider anything less than 100% compliance with both CDC guidance and the hotel’s own safety policies unreasonable conduct that would lead to a finding of negligence.

One area where plaintiffs will struggle with these lawsuits is in proving causation. In any case for negligence, a plaintiff must show they would not have been injured had it not been for the defendant’s carelessness. When a plaintiff stays at a hotel, it is far from the only place they were on their trip. They may have been on an airplane, eaten at a restaurant, or attended an in-person meeting. Even if hotel staff did not follow COVID-19 regulations to the letter, a plaintiff may be hard-pressed to connect the fact that not every hotel employee was wearing a mask to their contracting COVID-19. Theoretically, the plaintiff would need to have extensive contact tracing as evidence in their case, which may prove to be difficult, especially with the contagiousness of the various COVID-19 variants.

No matter the obstacles that a plaintiff must overcome to win one of these lawsuits, a hotel will still need to show what it did to prevent COVID-19 outbreaks among its guests and/or workers. Not being able to show what reasonable measures the hotel took could lead to a jury finding it acted unreasonably; however, reasonable care and warnings may not be enough to prevent the hotel from being sued.

Some states have passed legislation to protect hotel owners from negligent exposure lawsuits. These states have raised the legal standard necessary to win a case to the heightened standard of gross negligence, which is far higher than ordinary negligence. Texas is not one of the states that have enacted a law like this, and plaintiffs’ attorneys are attempting to turn negligent exposure lawsuits into a new profit center, albeit one with uncertain chances of success.

Hotels Can Protect Themselves from Negligent Exposure Lawsuits

While negligent exposure cases seem like they may be difficult for plaintiffs to win, they will still impose significant litigation costs on the businesses that must defend them. In order to protect themselves from these lawsuits, hotels and similar establishments should:

  • Clearly communicate COVID-19 safety protocols to customers at check-in and in a prominent place;
  • Ensure that staff follow COVID-19 protocols at all times;
  • Monitor and follow CDC guidance and act accordingly;
  • Review insurance policies to see if they cover lawsuits based on negligent exposure to COVID-19;
  • Assign a staff member to have primary responsibility for overseeing the hotel’s compliance with safety protocols;
  • Document the hotel’s compliance with COVID-19 safety measures; and
  • Devise and institute protocols to notify guests when they may have come into contact with someone who tested positive for COVID-19.

Not only has the hotel industry suffered a steep drop in business over the last two years thanks to the pandemic, it now must contend with lawsuits brought by customers. Out of their lower revenues, hotels must invest even more money in safety and compliance to avoid being the target of one of these lawsuits.

At this point, it remains to be seen whether these negligent exposure lawsuits are anything more than inconveniences hotels will have to deal with as a cost of doing business during the proliferation of COVID-19. However, that will not stop the plaintiffs’ bar from continuing to file these lawsuits until there is more clarity about their merit.

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