Maritime Proctor Blog

Today, Governor Greg Abbott lifted all capacity restrictions on business operations in Texas, as well as the mandate to wear masks.[1]

What follows is my opinion, and not legal advice of any kind.

What we know:

-1-   COVID 19 is transmitted by respiratory droplets from people's mouths and noses when people are in close contact (i.e., within 6 feet of each other).  According to the Centers for Disease Control & Prevention (“CDC”), COVID-19 spreads very easily.[2]

-2-   Wearing a mask & maintaining social distance of 6 feet from people who are not in your household is the most effective way to avoid catching COVID-19.[3]

-3-   Vaccines are becoming widely available in the United States.  But, according to the NPR Vaccine Tracker website, as of March 2, 2021 only ~15.3% of the country is vaccinated.[4]  According to this same website, which draws on data from the CDC, Texas only has 6.5% of its population with both round 1 and round 2 of the vaccine.  12.7% of Texans have at least one of the two doses.

-4-   Efforts to pass a federal statute protecting businesses completely or reducing COVID 19 liability, such as the SAFE TO WORK Act sponsored by Texas Senator John Cornyn, did not pass both Houses of Congress.[5]

-5-   Texas currently has no statutes exonerating or limiting the liability of businesses for exposing employees, customers, and/or third parties (such as vendors) to COVID-19.[6]

With those 5 things in mind, let’s say a hypothetical business owner (“HBO”) owns and operates a business or businesses in Texas.  Upon hearing this news, the HBO opens to 100% capacity, does not require masks, and does not require social distancing. 

Then, a hypothetical mask-wearing patron (“HMWP”) comes in, stays 6 feet apart from everyone else, but comes down with COVID-19 in the next 2 weeks.  That HMWP could theoretically sue the HBO for tort damages (lost wages, medical bills, pain and suffering, mental anguish) resulting from negligence in not adhering to a reasonably prudent standard of business operations (i.e., maintaining all of the protections/restrictions in place during the pandemic). 

There is no state or federal tort reform law in Texas to protect the HBO or limit their liability.

I always tell my clients that anyone can sue anyone.  What matters is whether the lawsuit, as it is pled to the Court and as the evidence develops, has any substance.  I’ve seen my fair share of lawsuits that I would consider to be frivolous.  I’ve also seen just as many, if not more legitimate lawsuits where people were injured or wronged.

Can our HBO win in the lawsuit? Maybe. But how much is that going to cost the HBO in legal fees? And if that HBO has insurance that could cover his or her legal defense costs and/or fund a settlement or judgment against them, is the insurance company going to cover the claim/lawsuit or deny coverage based on the exclusions that may be in the HBO’s policy?  Defense costs of a personal injury lawsuit like this would likely be in excess of $100,000.00, given the amount of medical depositions and discovery that would most likely occur.

If you need to confer with an attorney about protections your business can continue to maintain for your employees, customers, and other third parties, feel free to contact me.

[1] https://texastribune.org/2021/03/02/greg-abbott-texas-announcement/ 

[2] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html

[3] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html

[4] https://www.npr.org/sections/health-shots/2021/01/28/960901166/how-is-the-covid-19-vaccination-campaign-going-in-your-state

[5] https://www.congress.gov/bill/116th-congress/senate-bill/4317/all-actions?overview=closed#tabs

[6] https://www.texastribune.org/2021/01/26/texas-greg-abbott-coronavirus-liability/