72% of Oklahoma Small Business Owners Fear Unfounded Lawsuits as They Begin to Reopen
Oklahoma’s small business owners are overwhelmingly worried about getting hit with frivolous lawsuits as they begin to re-open. According to a recent survey of NFIB Oklahoma small business owners, 72% were concerned or very concerned about increased liability, while 73% were concerned or very concerned with new regulations. (Breakdown: 39% were very concerned with increased liability while 33% were moderately concerned with increased liability.) Additionally, 81% of Oklahoma small business owners are concerned or very concerned about getting customers back and about customer safety. (Breakdown: 46% were very concerned with getting customers back with 35% were moderately concerned with getting customers back. When it comes to managing customer’s health and safety concerns, 46% were very concerned while 35% were moderately concerned.) NFIB, the nation and Oklahoma’s leading small business advocacy organization, recently issued a set of Liability Protection Principles, intended to protect small businesses from the threat of unfounded lawsuits as they begin to reopen. Those principles are listed at the end of the press release.
“The numbers show that Oklahoma small business owners are very concerned about increases in liability claims when reopening their businesses,” said NFIB State Director in Oklahoma, Jerrod Shouse. “We urge Congress and the Oklahoma Legislature to address NFIB’s Liability Protection Principles so that Oklahoma small businesses who have fought so hard to survive the coronavirus crisis can get back to work without the fear of costly legal battles looming over them.”
In Tulsa, Whitney McKellar’s small business, M & M Lumber, is open for business, encouraging separation between employees and customers along with continual cleaning of high touch places. McKellar says her employees have been troopers with her new practices, adhering to all the changes in addition to appeasing customers in a high anxiety environment with an invisible virus floating around them.
Whitney poses with her female employees before the coronavirus crisis.
“In our society, you can sue anyone for anything. You don’t even have to have proof at the time you file suit. These commercials have made it expensive just to be named in a suit from day one of getting the notice of a filing – even when you are later released from the lawsuit. It is still expensive to defend yourself against frivolous lawsuits,” says McKellar.
“With COVID-19, a suit potentially will be filed by a person who tests positive to all the places that person has visited. Attorneys who take cases at no upfront charge can file multiple lawsuits in hopes that one or more of the businesses they sue will settle.
Whitney is having all her employees wear protective gear and clean high volume areas on a regular basis.
If and when a case goes to trial, a business will show their due diligence of all the measures they did to protect themselves, employees, and customers against the virus. Maybe you cleaned every hour. It will be argued that you should have cleaned every 30 minutes. Maybe you provided face masks to your employees. It will be argued that one guy didn’t have his on. Maybe you provided hand wipes and face masks to customers coming in your establishment. It will be argued that you weren’t taking everyone’s temperature upon entering your door.
It can go on and on but the fear is that these lawsuits will be all over even with trying our best to do what we can to provide a safe and healthy work place,” says McKellar.
Below is NFIB’s set of Liability Protection Principles designed to address the legal issues of most concern to small business and which should be addressed in any legislation Congress passes.
- The Workers Compensation system should be the exclusive vehicle employees who suffer serious physical injury from COVID-19 at work use to adjudicate their claims.The workers compensation systems developed in each State are best-situated for determining whether a worker contracted COVID-19 at work and is eligible for compensation as a result.
NFIB recommends that Congress specifically provide that employer liability for physical injury due to COVID-19 be adjudicated under state workers compensation laws. No separate federal or state tort liability should be permitted for employee injury claims due to the virus.
- Businesses should be protected from liability to customers and other third-parties unless those customers or parties prove the business knowingly failed to develop and implement a reasonable plan for reducing the risk of exposure to COVID-19 and that failure caused the injury.When reopening a business both the Occupational Safety and Health Administration and the Centers for Disease Control offer guidelines for keeping workplaces safe. In addition, state health departments may also have suggested procedures. These guidelines are instructive; however, they are often not legally binding and should not be used as a “get into court” free card for the unscrupulous trial attorney. Business owners should develop and implement plans to reduce the risk of COVID-19 exposure in the customer and third-party “facing” locations of their business.
NFIB recommends that business owners be shielded from liability from lawsuits brought by customers or other third parties unless the customer or third party proved that the business knowingly failed to develop and implement a reasonable plan to reduce the risk of COVID-19 by customers and other third parties and that the failure caused the injury.
- Permitted lawsuits should be limited to persons who experience a serious physical injury due to COVID-19 resulting in hospitalization. Although there is still much to be learned about COVID-19, one thing scientists do know is that it affects different people in different ways. Indeed, we continue to hear of people who test positive for the virus but experience few if any symptoms.
NFIB recommends that Congress grant businesses immunity from coronavirus-related litigation except in cases of gross negligence that causes the plaintiff serious physical injury resulting in hospitalization or death. No claims for emotional injury due to contracting the virus should be permitted.
- Fines should be imposed on unscrupulous trial attorneys bringing frivolous COVID-19-related lawsuits. Small business owners do not have in-house counsel and the vast majority cannot afford to hire lawyers to defend their business and reputations in court. Trial lawyers know this and, as a result, small business owners are easy targets for the plaintiff’s attorney looking for a quick payout. Trial attorneys should be penalized – not incentivized – for bringing a frivolous COVID-19-related lawsuit.
NFIB recommends that Congress impose sanctions on attorneys found to bring a frivolous COVID-19-related claim. In addition to sanctions, the plaintiff’s attorney should be required to pay the defendant’s attorneys’ fees and other costs relating to the litigation.