RISK MANAGEMENT
DOES REQUIRING CUSTOMERS TO WEAR MASKS HAVE ANY EFFECT ON LEGAL LIABILITY ?
By : Chris Boggs , CPCU , ARM , ALCM , LPCS , AAI , APA , CWCA , CRIS , AINS ,
States are in various stages of reopening following months of COVID-19 lockdowns . As the states progress through the phases , businesses are making key decisions regarding masks . Should masks be required or optional ? Some legislatures have taken responsibility for this decision away from business owners and require masks to be worn , but other states leave the decision to the business owners ’. In states where the decision rests with the business , some operations have made the corporate decision to require masks to be worn by all who enter the premises . From a legal liability perspective , is this necessary ?
LEGAL LIABILITY Legal liability is liability imposed by the court or regulators on the person or entity legally responsible for injury or damage suffered by another party . Such legal obligations ( or liability ) can arise from intentional acts , unintentional acts , contracts ( express or implied ), or regulations . Legal liability generally focuses on civil wrongs but can include criminal wrongs . “ Legal liability ” exists when :
• The wrongdoer is found guilty of “ Negligent Conduct ” ( breached the duty owed );
• The injured party suffers actual damages ; and
• The wrongdoer ’ s “ negligent conduct ” is the proximate cause of the injury or damage .
An essential requirement towards proving “ negligent conduct ” and ultimately legal liability is proving that the supposed tortfeasor ( the wrongdoer ) has or owed the injured party a specific duty of care and breached or failed to satisfy that duty . The degree of care owed to an injured party is based on the relationship between the wrongdoer and the injured party .
The greater the degree of care required or expected , the lower the threshold for breaching a duty owed ( it is easier to breach a duty when greater care is required ). Courts generally recognize four degrees of care or “ levels ” based on relationships are :
Slight Negligence : A high degree of care is required ;
Ordinary Negligence : Requires “ reasonable ” care such as would be provided by a reasonable and prudent person ;
Gross Negligence : Very little care beyond slight care ( not to be confused with slight negligence ) is required . This is represented by a deliberate or reckless disregard of a duty to exercise care which is likely to cause foreseeable and significant harm ; and
Negligence per se : A breach of duty because the law says it is . Negligence per se requires : 1 ) the at-fault party to violate the law , 2 ) the law to pertain to public safety , 3 ) the violation of the law be the cause of the injury , and 4 ) the injured person be a part of the class of persons the law was designed to protect .
In a business / customer relationship , the business
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