Congress or the state may act but many won’t wait

in Contributors/Scott Graber by

By Scott Graber

It’s Tuesday and I’m in my small, tastefully furnished office on Carteret Street. This morning I’ve got the “house blend” from Parker’s ($1.62) and a copy of the New York Times.

The Times tells us that business owners want protection, a shield of sorts, from “lawsuits related to reopening the economy amid the coronavirus pandemic.”

“Government officials are beginning the slow process of lifting restrictions on economic activity in states and local areas across the country. But lobbyists say retailers, manufacturers, eateries and other businesses will struggle to start back if lawmakers do not place temporary limits on legal liability….”

The coronavirus crisis has confirmed that we are a compassionate and generous species. One needs only to watch the news at 6 to see the grim-faced, exhausted nurses in order to visualize selflessness and sacrifice.

However, there is another side to our national character called accountability. And accountability comes in different sizes, and shapes, and has its own enforcement apparatus. That apparatus usually involves lawyers and lawsuits.

It is important to understand that the South Carolina General Assembly is the entity that controls who can sue in its Circuit Courts.

It is also important to know there are U.S. District Courts, a separate system of accountability, but most “premises liability” lawsuits are filed in South Carolina’s Circuit Courts. And South Carolina’s Common Law (court-made precedent) defines the duties a business owner owes to “invitees” and to employees.

While the State courts continually revisit and refine that duty, the General Assembly makes the rules on what documents can be introduced into evidence; what questions can be asked of a witness; what instructions (charges) will be given to the jury.

And right at the moment there are discussions under way among our legislators about placing limitations on those persons who file suit against small businesses in the aftermath of the pandemic.

Presumably these discussions begin with a determination of whether plaintiffs — customers and employees — will actually sue business owners who stayed open during the lock-down or those businesses that open before a vaccine arrives.

Although it is relatively easy to file a lawsuit in South Carolina, proving negligence is not always easy. In this case a customer who got the virus would have to point to a person, or a premises, and say, “I got my virus in this place, from him or from them.”

Since the virus is pretty much everywhere, it may be hard to point to a specific person, a specific place, and find an expert — an epidemiologist — who can confirm that connection.

But after pondering the likelihood of lawsuits for maybe 30 seconds, I’m willing to bet that any legislator who owns a big screen television — and who has watched personal injury lawyers advertise — knows the answer to this first question is, “Yes there will be lawsuits.”

A second question is what “best practices” must a restaurant or retail owner follow in order to get the State’s protection from lawsuits. What must a business do to make sure that its employees are reasonably safe and do not spread the virus to customers while we wait for a vaccine?

The first thought that comes to mind is requiring testing of the sales clerks and wait staff; distancing; and using masks where feasible.

This testing, followed up by continual antiseptic scrubbing, would not be a fail-safe solution, but it might be enough to give our Legislature license to extend lawsuit protection to small businesses across South Carolina.

One wonders if the General Assembly capable of making a decision on this soon, in special session, before the dam breaks and the public reclaims their preferred tables and their favorite bar stools.

And, of course, one wonders if the State of South Carolina is capable of this kind of large-scale testing?

The State Newspaper says South Carolina intends to test 220,000 people. The State says nursing home residents, correctional facilities and homeless shelters are first in line.

Interestingly, restaurant and retail employees don’t seem to have a place in that line.

Porch, patio and reconfigured indoor dining seem to be under way. It does not appear that some business owners are willing to wait for our Legislature to act. Or believe it will act.

Perhaps the United States Congress, led by Mitch McConnell, will provide protection in a forthcoming relief package.

But many local business folk seem to have made their own risk assessment and are going to take their chances.

Scott Graber is a lawyer, novelist, veteran columnist and longtime resident of Port Royal. Email Scott at cscottgraber@gmail.com.