STATE OF MISSOURI GENERAL LIABILITY COVID-19 QUICK GUIDE

Prepared by Stephen L. Beimdiek Lashly & Baer, P.C. 714 Locust Street St. Louis, MO 63101-1699 314 621.2939 [email protected] www.lashlybaer.com

2020 1. : The statute of limitations for personal injury claims in Missouri is generally five years. MO. REV. STAT. § 516.120(4) (2016).

2. : Negligent transmission of an infectious disease is based on both actual and constructive knowledge of the underlying condition. A plaintiff must establish that (1) the defendant owes him or her a duty; (2) there was a breach of that duty; (3) that the defendant’s actions were the actual cause (cause-in-fact/but-for) of the plaintiff’s injury; (4) /foreseeability; and (5) to the plaintiff. The Missouri Supreme Court has declared that, in negligence cases, whether a duty exists usually depends on whether a risk was foreseeable. Because the likelihood of the transmission of COVID-19 and the severity of the risk and illness associated with it are high it is a matter of public policy to prevent its spread. As such, SARS- CoV-2 carriers owe a duty to other individuals, particularly to those in close proximity. The infected individuals either know or should have had reason to know that they are carriers of SARS-CoV-2, i.e. they developed symptoms or had close contact with other infected individuals. Accordingly, liability could attach if such individuals proceeded to act in a way that puts others at risk.

3. Standard of Care: CDC guidelines will likely be adopted as a basic level of care individuals and businesses are required to follow. Currently, those guidelines provide everyday preventative actions for the household such as frequent handwashing, avoiding face contact with unwashed hands, social distancing (>6ft), staying home when sick, cleaning and disinfecting frequently touched objects and surfaces, and wearing a mask in public. Businesses are advised to institute procedures such as conducting daily health checks, conducting hazard assessments of the workplace, encouraging employees to wear a mask, implementing policies and practices for social distancing in the workplace, and improving the building’s ventilation system. This will likely be the standard of care applied in COVID-19 claims.

4. Causation: Plaintiffs must be able to attribute their exposure or injury to a particular defendant. The incubation period for COVID-19 is thought to extend to 14 days, with a median time of 4-5 days from exposure to symptoms onset. Consequently, it may be difficult to pinpoint a particular defendant after encountering several vectors of exposure. General (proximate) causation may require expert testimony to establish the particular point in time when exposure occurred.

5. Premises Liability: In Missouri, businesses that occupy a property must make reasonable efforts to maintain a safe environment for visitors and owe a duty to protect others from an unreasonable risk of harm caused by dangerous conditions on their property. Missouri follows the modified rule that an open and obvious condition is not a complete to a landowner's liability if the landowner could have anticipated that the would still encounter the danger. Businesses should at least meet or exceed all sanitation and cleaning guidance issued by governmental authorities, the CDC, and industry standards. Businesses should consider displaying signage to warn and licensees of the potential for exposure to COVID-19 and of the CDC social distancing guidelines.

6. Violation of Statute/Executive Orders as of Negligence: Violation of a statute may be evidence or prima facie evidence of negligence, and the Missouri Supreme Court recognizes that violations of statutes and administrative rules may constitute negligence per se. The rationale behind this principle is that the statute or rule is a legislative or administrative pronouncement of the standard of care; therefore, a violation of the statute or rule constitutes a breach of the . To utilize negligence per se in Missouri, it must appear that: (1) the defendant violated a statute; (2) the injured party was within the class of persons intended to be protected by the statute; (3) that the injury was of a character the statute was designed to prevent; and (4) that the violation of the statute was the proximate cause of the injury. However, contributory fault will not reduce recovery where the statute is intended to protect a plaintiff despite his shortcomings. The plaintiff's violation of a statute may also constitute per se and thereby reduce his recovery. Pursuant to MO. REV. STAT § 44.100, during a state of emergency, the Governor may issue Executive Orders to ensure the protection of the safety and welfare of the citizens of Missouri by regulating the movement of individuals, traffic, and places of amusement and assembly. The Courts will likely apply these Orders like any other statute.

7. Contributory Negligence: Missouri follows a “pure” comparative fault approach whereby plaintiffs can recover even if they are 99% at fault. Under Missouri’s comparative fault system, the plaintiff first proves that the defendant was responsible for their injuries. If a defendant raises the of contributory negligence/comparative fault, once a judge or jury is sufficiently convinced that the plaintiff bears some fault, the judge will reduce the amount of damages the plaintiff receives, based upon the percentage of fault assessed to the plaintiff. If the injuries are extensive, recovery is possible even when plaintiffs are substantially at fault. MO. REV. STAT. § 537.067 (2016). Comparative fault is an affirmative defense that must be plead according to the provisions set forth in MO. SUP. CT. R. 55.08 (2016). Violations of CDC guidelines for personal safety precautions may be used as an affirmative defense to COVID-19 claims. The fault of plaintiff will reduce plaintiff’s damages but will not completely bar recovery. RSMo §537.765.

8. Assumption of the Risk: In Missouri, implied primary assumption of risk is recognized as involving apportionment of fault. Acceptance of a risk may be by express or implied from the surrounding circumstances. In primary assumption of risk cases, the defendant owes no duty to the plaintiff. For the defendant to invoke the assumption of risk defense, the plaintiff must have (1) known that there was a risk of the same sort of injury that the plaintiff actually suffered, and (2) voluntarily took on that danger (assumed the risk) in participating in that activity. Assumption of risk is a complete bar to recovery where the plaintiff expressly to the presence of an obvious hazard or where the defendant owes "no duty" to the plaintiff. This defense may be raised if the plaintiff failed to follow CDC guidelines.

9. Statutory Cap on Non-Economic Damages: Effective August 28, 2020, the damages cap for non- economic damages in wrongful death actions and catastrophic personal injury cases against medical providers is $700,000.00, and $400,000.00 for non-catastrophic cases. MO. REV. STAT. § 538.210.2. The limitations on awards for noneconomic damages provided for in this section shall be increased by one and seven-tenths percent (1.7%) on an annual basis effective January 1 of each year. MO.REV. STAT §538.210.10. Missouri’s cap applies to medical cases only.

10. Death Cases: All actions for wrongful death have a three-year statute of limitations, including medical malpractice, starting from the day of the death of the person. Under MO.REV.STAT §537.090, certain family members may be able to recover compensation for the following damages by filing a successful wrongful death claim: • Pecuniary losses as a direct result of the death; • Funeral expenses; • Damages the deceased incurred between the time of injury and time of death; and • , companionship, comfort, guidance, and counsel. Missouri recognizes loss of society as a separate cause of action distinct from wrongful death, and therefore such a claim is still viable even if a plaintiff settles his personal injury claims. There is no cap on non-economic damages in non-medical negligence wrongful death cases.

11. Punitive Damages: Punitive damages are limited to $500,000 or five times the net amount of the judgment rendered against the defendant, whichever is greater. RSMo §510.265.1. In general, punitive damages may be awarded when the defendant’s conduct is outrageous and reckless, or when there is “complete indifference to or conscious disregard for the safety of others.” If, however, the defendant acts in good faith and in the honest belief that his act is lawful, he is not liable for punitive damages even though he may be mistaken as to the legality of his act. In order to receive punitive damages, a plaintiff cannot simply allege outrageous or wanton conduct, but instead must present “clear and convincing evidence” of the defendant’s reckless conduct. The plaintiff must specifically plead punitive damages and state separately in the petition the amount of such damages to be recovered. MO. SUP. CT. R. 55.19 (2016); MO. REV. STAT. § 509.200 (2016).

FAQs Can a plaintiff recover for fear of exposure to COVID-19? Possibly. The emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant. In fact, it should be serious enough to require medical attention. In Missouri, it is unnecessary that the plaintiff sustain a contemporaneous physical injury as a result of the defendant’s conduct. Absent (1) proof of actual exposure to COVID-19 as a result of a defendant’s negligent conduct; and (2) the presence of the COVID-19, the fear of contracting COVID-19 may be unreasonable as a matter of and, therefore, may not be a legally compensable injury. In similar cases the fear of contracting HIV itself was not a cognizable injury.

Will Commercial General Liability Insurance apply to COVID-19 claims? Possibly. Commercial general liability (CGL) insurance policies respond to claims by third parties for, among other things, bodily injury and property damage. Some CGL policies without disease exemptions consider COVID-19 a “pollutant” under their pollution liability exclusions. The definition of a pollutant in insurance policy varies by carrier, making this issue unique only to some plans. Some carriers also explicitly include viruses in their pollutant exclusions. Read your plan’s pollution policies to see if they could apply to COVID-19. Absent an express and clear exclusion for communicable diseases, businesses should not assume that these exclusions apply. Bodily injury and property damage claims by employees’ family members likely would fall under CGL insurance. Businesses also should recall that coverage or other protection may be available through additional insured and indemnification provisions in their commercial agreements if a claim results from the activity of their contracting counterparty. In most states, policy language is interpreted to protect the reasonable expectations of the policyholder. Thus, if the language is ambiguous and subject to two reasonable interpretations, courts will construe the language against the insurance company and in favor of coverage. Courts typically broadly apply the obligation of insurers to provide a defense under their policies. Thus, if even a single claim or allegation potentially falls within coverage, under the law of most states, the insurer will be obligated to provide coverage. As a result, businesses should never assume that claims are not covered. As always, it is critical to focus on the actual language of the policy and apply the actual facts to those provisions.

Is there immunity from COVID-19 claims? Governmental intervention may provide immunity from COVID- 19 claims to individuals and business entities. Expansive liability immunity was offered by the Declaration of the Secretary of the Department of Health and Human Services and the PREP Act, which provides manufacturers and distributors of “covered countermeasures”—COVID-19 products used in the fight against the pandemic—and healthcare providers treating patients with immunity from federal and state tort liability. Some governors have issued executive orders providing liability protection for healthcare providers and other essential entities. Health care providers of city and county health departments or nonprofit community health center or other nonprofit entity (501(c)(3)) have liability immunity for any civil damages for acts or omissions unless the damages were occasioned by or by willful or wanton acts or omissions while rendering such treatment or unless the physician maintained, at the time of treatment, liability insurance for such treatment. MO.REV.STAT. §538.228.

BEST PRACTICES FOR AVOIDING/REDUCING FUTURE LIABILITY FOR COVID-19 CLAIMS • Follow or exceed industry and CDC standards for hygiene, sanitization, and safety. • Follow or exceed local, state, and federal prevention guidelines and recommendations. • Follow or exceed OSHA’s recommended procedures for workplace safety. • Adopt, implement, and enforce practices that limit person-to-person interaction and promote social distancing (i.e., mobile order, curbside pickup). • Develop and execute procedures for monitoring the health and well-being of employees. • Educate employees about prevention and safe practices. • Display signs/warnings encouraging customers to follow CDC guidelines. • Prohibit persons who do not comply with CDC guidelines from entering premises. • Develop policies for communication with local and/or state health department representatives to ensure your business stays current on all guidelines, recommendations, and regulations. • Develop and implement an incident investigation procedure for all potential COVID-19 related claims (i.e., workers’ compensation, liability). • Retain documents reflecting all precautions, policies, procedures, and the daily implementation of the same.

HELPFUL LINKS • CDC Workplace Guidance • Centers for Disease Control and Prevention – COVID-19 • EEOC’s COVID-19 Page • OSHA’s COVID-19 Page • OSHA’s Guidance on Preparing Workplaces for COVID-19 • World Health Organization COVID-19 Updates • Missouri Department of Health & Senior Services: Negligence and Malpractice • City of St. Louis COVID-19 Standards and Guidance • Missouri Courts • Missouri Governor: Executive Orders • Missouri Revisor of Statutes

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