COVID-19 General Liability Concerns as Florida Enters Phase 2

Posted in Legal Alerts on June 12, 2020

On June 3, 2020, Governor Ron DeSantis announced that most of Florida, exclusive of some South Florida counties, would enter Phase 2 of the Re-Open Florida Task Force’s Plan for Florida’s Recovery. Phase 2 permits restaurants to open at 50% capacity indoors exclusive of employees.  For the first time, bars, defined as “any licensee authorized to sell alcoholic beverages for consumption on premises that derive more than 50% of its gross revenue from the sale of alcoholic beverages” may open and operate at 50% capacity indoors with bar areas to be open with seated service. The re-opening provision does not apply to nightclubs, which must remain closed.  Both restaurants and bars may open outdoor seating, the only limitation being with “appropriate social distancing.” Executive Order 20-68 modified earlier Executive Orders and took effect on June 5, 2020.

While some of the challenges business owners have faced have been predictable, we anticipate the challenges they will face in Phase 2 could be more problematic.  With more and more patrons and consumers returning to their favorite local establishments, bar and restaurant owners are left asking what exposure they have for customer claims of exposure to COVID-19 at their premises. 

In an effort to allow businesses to re-open without fear of liability for COVID-19 concerns, some states have passed or proposed legislation insulating businesses from liability from civil claims related to COVID-19.  North Carolina, Oklahoma, Utah, and Wyoming have passed laws which provide some measure of immunity for premises owners for civil claims related to COVID-19. Similar bills have passed the Louisiana House and Senate, the Kansas Senate, and the Arizona House. However, no such legislation has been passed in Florida and further, tort reform was not included in the Task Force’s Report to Governor DeSantis. Accordingly, restaurants and bars will be charged with safeguarding their premises in accordance with existing Florida law.

In Florida, a premises owner owes a business invitee a duty to maintain its premises in a reasonably safe condition and further, warn of known dangers or dangerous conditions. Possible negligence claims related to COVID-19 in restaurants and bars may turn on the foreseeability of the condition, the adequacy of a warning, and the reasonableness of the safety measures the premises instituted to avoid transmission of or exposure to the virus.

Bars and restaurants should ensure compliance with all applicable Federal, State, and local guidelines and maintain regular written documentation of their compliance.  Available resources for restaurants and bars include the National Restaurant Association re-Opening Guide (updated May 22, 2020) available here: https://go.restaurant.org/covid19-reopening-guide?utm_source=press-release&utm_medium=referral&utm_campaign=restaurant-reopening-guidec

The FDA has also provided a Food Safety Checklist for Best Practices for Re-Opening Retail Food Establishments during the COVID-19 Pandemic, available here:  https://www.fda.gov/media/137867/download