KIA&B January/February 2021 | Page 12

RISK MANAGEMENT
against that risk .
Given the relatively unclear requirements of reasonable care , the difficulty in proving the virus was contracted at a particular place on a particular day , the doctrine of assumption of risk , and the limited purposes of the masks , business owners are unlikely to be held legally liable solely because masks were not required of all customers . Requiring masks may exceed the requirement of reasonable care . Certain disabilities and ADA laws may make it impossible for all customers to wear a mask . If courts made mask-wearing the minimum standard of reasonable care , removing the freedom of personal choice generally granted to the business owner and the customer / citizen , the court would legislate masks by making maskwearing the minimum standard of care while ignoring the protection of assumption of risk . Some states have already undertaken legislative efforts to protect business owners .
MASKS REQUIRED Previous paragraphs addressed the types and relative effectiveness of masks . Does requiring all customers wear a mask decrease the business owner ’ s potential to be held legally liable ?
Health officials recommend ( where not a requirement ) masks be worn that prevent the spread of droplets and mists from the nose and mouth that may contain the virus . Again , these masks aren ’ t necessarily designed to prevent the wearer from contracting the virus . Still , when every customer wears masks , the theory is everyone has a reduced ( though not eliminated ) chance of contracting the virus .
On the surface , requiring everyone to wear a mask appears to lower the chances of the business being accused of contributing to or causing a person to contract the virus . Requiring a mask seems to be a physical manifestation of an exculpatory statement such as “ Not Responsible for Broken Windshields ” or “ Enter at Your Own Risk , Not Responsible for Injury .” The statement doesn ’ t make it so .
Individuals may be less likely to sue , but requiring masks
12 may not lower or heighten an operation ’ s legal liability for injury to a customer – if it can be proven the virus was contracted at the location . What other steps were taken to protect the customer ?
Legal liability is a function of duty and facts . Requiring masks of all customers may be above and beyond the duty of reasonable care owed to customers .
TO MASK OR NOT MASK Requiring masks or allowing customers to make a personal choice does not affect the business owners ’ ultimate legal liability . What is the duty owed ( reasonable care )? Did the owner meet the duty owed ? If both questions are answered “ yes ,” the business is not legally liable for any injury suffered .
Can the infected person prove the virus was contracted at the business ? Given the facts of a virus and particularly this virus ( with its long incubation period ), proving it was contracted in any one place on any given day is nearly impossible .
Holding a business legally liable without other clear and convincing evidence simply because customers were not required to wear masks forces the court to set a standard of care almost impossible to maintain in the future . Every flu season or another community sickness event will subject business owners to a higher degree of care than ever required in history or should be considered reasonable .
A virus is a natural organism that man can avoid only so long . Holding a business owner legally liable is unreasonable given the facts of care and a virus ’ s reality . Requiring masks may dissuade some from naming the business in the suit , but not requiring masks does not increase the overall chances of being held legally liable .
Christopher J . Boggs , CPCU , ARM , ALCM , LPCS , AAI , APA , CWCA , CRIS , AINS , is the executive director of the Independent Insurance Agents and Brokers of America ( IIABA or the Big “ I ”) Virtual University . His 29-year insurance career includes work as a risk management consultant , loss control representative , insurance producer , claims manager , journalist and columnist , and quality assurance specialist . Boggs earned a Bachelor of Science degree in journalism at Liberty University in Lynchburg , Virginia .