How Your Florida Business Can Face a Negligence Per Se Claim During the Stay-at-Home Order

State and local governments in Florida ordered to shut down all non-essential businesses in response to the spread of the coronavirus disease. Gov. Ron DeSantis’s order, issued on April 1, 2020, clarifies that only essential businesses can remain open.

Essential businesses include pharmacies, grocery stores, gas stations, banks, laundry services, post offices, hardware stores, and others. You can view the full list in Florida’s stay-at-home order to check if your business can remain open during the COVID-19 pandemic. 

Avoiding Potential Liability for Negligence During the COVID-19 Pandemic 

Just because your company is considered “essential” and can remain open during Florida’s stay-at-home order does not exempt your business from complying with social distancing rules, cleaning and disinfection requirements, and other public safety recommendations from state and federal authorities.

If your business can remain open during Florida’s stay-at-home order, it is imperative that you comply with all federal and state requirements and recommendations to:

• prevent possible enforcement actions against your business; and
• avoid potential liability for negligence, business litigation, and other tort claims.
  

Business Litigation and Negligence Per Se 

The level of compliance with coronavirus-related federal and state guidelines and recommendations for essential businesses depends on your type of business and your individual circumstances. However, failing to comply with social distancing guidelines may pose a risk of liability under the legal doctrine of “negligence per se.”

Unlike with negligence claims, businesses held liable under the doctrine of “negligence per se” cannot avoid liability by arguing that their conduct was “reasonable” under the given circumstances. The only thing that matters in such cases is whether the business violated the applicable rule or requirement (e.g., the mandated social distancing guidelines) and whether someone was injured as a result of that violation.

If your business fails to comply with the applicable rule and someone gets hurt, your business will be held liable regardless of how “reasonable” you think your actions were and whether another reasonable business would have done the same thing.

Why Your Business Can Face a Negligence Per Se Claim During the Stay-at-Home Order 

Unfortunately, your business might face liability for failing to follow the mandated social distancing guidelines or regularly sanitize and disinfect the facility and the frequently touched surfaces.

Thus, your business can be held liable if an individual contracts coronavirus because you:

• Failed to sanitize frequently touched surfaces;
• Failed to space customers out while standing in line;
• Failed to equip your employees with personal protective equipment (e.g., face masks and gloves);
• Failed to implement the mandated social distancing measures; or
• Failed to comply with other federal or state guidelines during the COVID-19 pandemic.

If your customer or visitor becomes infected with coronavirus after visiting your essential business during Florida’s stay-at-home order, your business might be held liable under the negligence per se theory if there is evidence that you failed to comply with any applicable standards or requirements.

However, the biggest challenge would be to prove that your business’s failure to comply is what caused the COVID-19 infection. After all, given the contagiousness of the coronavirus disease, proving such causation can be complicated.

If your business is facing a lawsuit for negligence per se during Florida’s stay-at-home order, talk to a West Palm Beach business litigation attorney. Contact Pike & Lustig, LLP, to receive a consultation. Call at 561-291-8298 to obtain a case review.

Resource:

.icsc.com/uploads/t07-subpage/EO_20-91_re_statewide_safer_at_home.pdf