RISK MANAGEMENT between requiring masks and allowing customers the option , masks ’ purpose and effectiveness must be considered . Discussions focused on masks ’ effectiveness may be more complicated than the concept of legal liability because of the emotions and the lack of clear information surrounding the wearing of masks .
PURPOSE : The Centers for Disease Control ( CDC ) and the World Health Organization ( WHO ) both state there are essentially two grades or levels of masks : 1 ) those that filter out the virus designed to protect the wearer from contracting the virus and prevent the wearer from spreading the virus ; and 2 ) those intended to prevent the wearer from spreading the virus , but that does not necessarily prevent the wearer from contracting the virus . The masks most often worn by the public are the second type – masks intended only to prevent the spread and not the contracting of the virus .
EFFECTIVENESS : Unfortunately , the question of effectiveness seems to be unanswerable . Some claim the masks are very effective ( giving percentages of protection without credible source substantiation ). Some say they are little more than a “ feel-good ” measure using drywall dust and even smoke to prove the point . Even the CDC and WHO are inconsistent in their messages . Regarding legal liability , effectiveness is mostly irrelevant .
MASKS OPTIONAL Business operations choosing to allow the customers to make the mask-wearing decision may subject themselves to accusations by a customer that they contracted the virus from an unmasked person or persons in the store . The injured person may assert that close contact with an unmasked person or persons led to their sickness .
Such charges may be impossible to prove . A virus is a humankind exposure and is not limited to a location where people are not wearing masks . If the claimant visited the grocery store , bank , pharmacy , office , or other places during any particular day , proving the only place where they were exposed to the virus was the grocery store would be of utmost difficulty . Add to this the reality that other family members may have been several places , contracted the virus , and brought it home to everyone else in the house .
Lastly , the masks worn in public are not designed to keep the virus from getting in . They are intended to limit the expulsion of the virus from the nose and mouth .
Frankly , lacking a law to the contrary , the business owner does not owe the customer a duty beyond reasonable care . Reasonable care is limited to the premises and what the business can control ; viruses exist in more places than just the business premises . A business cannot be expected to protect a customer from exposure in all aspects of a customer ’ s life . Narrowing the person ’ s exposure down to one business on one particular day is truly picking gnats out of pepper .
Additionally , the legal concept of assumption of risk may be an affirmative defense to the mask-optional discussion . Assumption of risk is a legal doctrine under which an individual is barred from recovering damages for an injury sustained when he or she voluntarily exposed him or herself to a known danger . Put another way , the assumption of risk prohibits the injured party from seeking damages on the basis that the plaintiff ( injured person ) knew of a hazardous or potentially hazardous condition and willingly exposed him or herself to it .
Assumption of risk defenses require the defendant to show :
• The injured party had actual knowledge of the risk involved ( conspicuously post signs warning “ Enter at your own risk , masks are optional ”); and
• The plaintiff voluntarily accepted the risk ( they entered the store ).
When a customer visits a business where masks are optional , they make a conscious decision to enter the premises or not . If the injured party assumed the risk by entering the premises , the law generally recognizes the defendant no longer owes a duty to protect the plaintiff
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