What Happens If Businesses Reopen Despite State Restrictions?

Reports emerge of at least one NY business defying state restrictions and reopening before the governor gives the green-light. Would these businesses be liable if someone gets sick after visiting? Attorney Paul Harding of Martin, Harding & Mazzotti, LLP is on the radio with PYX106 discussing the issue. Please give it a listen or read the transcript below.

Announcer: PYX 106, Quinn and Cantara.

Quinn: 1800LAW1010, 1800law1010.com. Paul Harding, Martin, Harding & Mazzotti, on the phone.

Cantara: And it’s so bizarre because we emailed Paul yesterday saying we wanted to talk about businesses who may feel like they’re gonna…or may try to open up before the governor, just in a general, kinda generic way. And lo and behold we’re looking at, I think, a Columbia County fitness owner who opened up his business and is now, kind of, in the thick of it all. How are you doing, Paul, by the way?

Paul: Good morning. Doing well.

Cantara: So what is the law, if someone opens up ahead of the governor?

Paul: Well, they’re in violation of the law. The question is the enforceability. Now the Governor from the beginning said, “Listen, we’re not going to arrest people for this. There’s gonna be fines imposed and do the right thing, do the right thing.” Now around the country, you know, we’ve seen Elon Musk, he’s in the news for that, but there’s been gym owners who’ve been arrested in California, hairdressers in Dallas, a pastor in Tampa who violated the rule, and have all been arrested. New York so far, no one’s been arrested.

Quinn: Paul, what about, you know, say they open against law and somebody comes into their establishment and gets hurt, and then they try to collect money and sue through an insurance company. Is that company gonna be able to use their insurance that they have, or is that insurance company gonna tell them, “Scram? Pay the guy for his broken leg yourself.”

Paul: Well, you know, they’re supposed to be closed. The insurance company, in a broken leg situation, would still be on the hook if, during the course of this, they do something that causes someone to get hurt, right? The big question is this COVID-19. If someone gets, we’ll call it COVID-19, as a result of being in there, you know, could they be liable for that? Would the insurance company pay on that? You know, as a sorta general proposition, to prove someone got it there, nearly impossible, right? Everybody’s afraid of these COVID-19 cases. I don’t see ’em. I don’t see any of ’em. I don’t see how you’d even prove it. My gosh, you can get it from opening your mailbox. You can get it from when you go to Stewart’s and you just touch the door. So I’m not saying that the lawsuit basis here is gonna be an issue. They’re probably watching to see if, “Hey, if nothing happens to this guy, maybe I’ll do it too.” Right? Because we don’t have these criminal penalties in New York.

Quinn: That’s the problem. People start making their own decisions and [crosstalk 00:02:28]…

Cantara: Just hang on. If you just hang on for, like, another week. If you talk to Sheriff Apple, and you know, if you just hang on for another week, maybe Albany County opens up. I have to go back to, and I feel like I’ve asked you this before Paul, but it’s in violation of the law, but it’s a law because the governor signed an executive order. It didn’t pass anywhere to become a law, right?

Paul: No, there was no law passed. There haven’t been a lot of laws passing lately. There’s been a lot of discussion about that and, again, no one would wanna be in the Governor’s shoes right now, or any public servant shoes because the decisions are hard. So yeah, you know, the governor, really just in the beginning, just said, “You know, we’re not gonna arrest people.” And, you know, in New York City there were some restaurants that stayed open, but the fines are a little tough. They start at $2,000, they can go up to $10,000, and then they can multiply it by the number of employees, the number of days. So it’s daunting, you know, maybe more so than just being arrested.

Quinn: And this guy opening up his business, he’s one story out of all these businesses who are really toeing the line. And the people, according to the governor, have really been toeing the line on their social distancing. And this is why, you know, it was so ugly for us right upfront. While the rest of the country is suffering a little bit more, we’re actually feeling better here in New York, and it’s time, and we’re itchy, and…

Cantara: We just gotta hang in there. We just gotta, I mean, I know it’s tough, I’m gonna sympathize with everyone not working and earning any money. If we just hang in there, maybe a week, we can do this thing, you know.

Quinn: Yeah, we can do it, you guys, we can do it.

Paul: When you’re counting the hours and the days to that, and I know everybody is. And sure, I think that there’s not gonna be a mass opening. Some other folks may open, I believe they’re gonna tolerate it, even the sheriff in the county where this gym opened, he kinda sidestepped it and said, “Hey listen, this isn’t a legal issue, right? This is a zoning issue, right?” So I could just see the sheriff, at that point, saying, “I don’t want anything to do with it,” because that’s where things can get outta hand.

Quinn: We’re in charge, America.

Cantara: We get these survey results every day, taken by like 100 iHeart stations.

Quinn: It’s soothing this morning.

Cantara: A third of people wanna run out the door, a third of people don’t wanna leave home, and a third of people kinda wanna just peek around. So, I think we’re split three ways here. Let’s just all get along, you know. I’ll get along.

Quinn: It makes sense. You know, my big concern is when people see other people doing something, they think that it’s open. They think, “Oh, that guy’s doing it, it must be open,” and that’s the problem, is the miscommunication.

Cantara: Let’s wait for the word from the governor.

Quinn: I know. We’ll see.

Paul: We’ll wait for the Governor. That’s right.

Quinn: All right, Paul.

Cantara: Thanks, buddy, Appreciate it.

Paul: All right, guys.

Quinn: Paul Harding from Martin, Harding, & Mazzotti, 1800Law1010, 1800law1010.com. We’ll see ya later, buddy.

Quinn: Thanks, Paul.

Paul: All right. Bye-bye, guys.