Defense of COVID-19 Bodily Injury Litigation in Illinois

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June 2, 2020
Margaret Firnstein and Charles Prochaska
SmithAmundsen Insurance Alert

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Should we expect bodily injury claims to be made and litigation to be filed in Illinois after “shelter in place orders” are lifted?  Probably.  It’s Illinois! With fewer car accidents and trip and falls happening during quarantine to keep the plaintiff’s bar busy, there is a good likelihood that there will be some litigation surrounding this novel disease.

What might these claims look like?  We anticipate, potentially, two types of plaintiffs:  (1) patrons of businesses to allege that they contracted coronavirus while staying at a hotel, visiting a restaurant, a museum, a grocery store, or simply standing in the lobby or elevator of a public building, and (2) spouses and/or other family members to allege that a business caused negligent infliction of emotional distress for fear of exposure to coronavirus from their family member’s perceived exposure while visiting a public establishment. 

Interestingly, there are no Illinois cases directly on point discussing land/business owner’s liability for a third-party’s contraction of an infectious disease. So, we must extrapolate and consider that the defense of any COVID-19 claim should start with the same analysis as any premises liability case. In Illinois, in order for a plaintiff to succeed in any negligence based claim, he/she must establish that the defendant breached a duty of care that proximately caused the plaintiff’s injuries. 

Knowing this, a highly recommended practice for any premises owner is to refrain from making any representations, oral or written, that the premises is COVID-19 free!  This way, a plaintiff cannot claim that he/she entered into a business, or onto a premises, in reliance of an alleged false representation to his/her detriment. In other words, unless a business patron has been living under a rock for the last several months, a business/premises owner starts off with a strong defense that every plaintiff knows, or should know, that coronavirus is contagious and transmittable. Based on current research, any plaintiff knows, or should also know, that coronavirus may be staved by practicing social distancing and wearing a face mask. Another good practice for a premises owner, then, would be to post signs – at the entrance and in various and numerous conspicuous places within the establishment – requiring patrons to wear face coverings and keep a distance of at least 6 feet from others.  Thus, if it can be shown that a plaintiff has not at least exercised reasonable care in practicing these two simple steps, then defense counsel should be successful in arguing that the plaintiff assumed a known risk of infection and  that there was no duty on the part of the business/premises owner.

Notwithstanding the difficulty in proving the causation element, the defense must keep in mind that Illinois case law often finds “proximate cause” to be a question of fact for a jury to decide.  Until legal precedent establishes otherwise, caution should be taken not to promise clients that the defense can prevail on a motion for summary judgment based on the “proximate cause” argument. 

As of the writing of this note, the City of Chicago has announced preliminary plans for businesses to reopen as Illinois’ stay at home order is gradually lifted. The city encourages employers to review industry-specific guidelines for reopening, prepare a reopening business plan to ensure that they are operationally compliant with the city’s standards, and to complete a survey in order to “self-certify” that the business will be compliant upon reopening. These resources, and more, are available through the city’s website. Preserving evidence of compliance with these steps will help an employer defend against potential COVID-19-related bodily injury claims.