Can I Sue a Restaurant for Giving Me Coronavirus?

Welcome to Ask Eater, a column from Eater SF where the site’s editors answer specific or baffling restaurant requests from readers and friends. Have a question for us? Submit your question in this form.

Dear Eater SF,

Like everyone else, I am so sick of eating at home, and I really, really can’t wait to sit down and eat at a restaurant again. My boyfriend is a different story: He says it's too dangerous to go out to eat until there’s a vaccine, and that if he catches coronavirus, he’s going to sue the restaurant. Can he even do that?

Yours,

My Boyfriend is a Bummer

Dear MBiaB,

I mean, you said it, not me — your boyfriend does, indeed, sound like a bit of a bummer, and anyone whose first step is litigation is someone with whom a future sounds...interesting?

But this is a column dedicated to dining advice, not relationship advice. So here’s what you need to know:

First, he’s not necessarily wrong in saying that dining out will increase his chances of catching the new coronavirus (COVID-19). Any exposure to folks outside his household, and even folks inside his household who have contact with others, means another chance to catch the virus. Sitting down at a restaurant is especially tricky, San Francisco’s Department of Public Health (DPH) says, because officials believe that the interaction between strangers is higher-contact than it would be with a simple retail transaction.

In addition, says Dr. Susan Phillip, the director of disease prevention and control for the DPH, even if restaurants can successfully space their patrons by cutting capacity in their dining rooms, “it’s very difficult to maintain spacing for the server.” That means servers have a greater chance of infection, and when infected they could communicate the virus to other patrons. Finally, Phillip says, you have to take your mask off to eat, which means that the layer of protection your boyfriend has when he goes to, say, Walgreens, is gone when he sits down to dine.

Getting to his legal question — and, obviously, I’m a reporter, not a lawyer, so this is not legal advice and should under no circumstances be construed as such — there are two things to consider. First, U.S. Senate Majority Leader Mitch McConnell says that he believes that a “lawsuit pandemic” could follow the viral one, as folks line up to sue health care workers and business owners for allegedly negligent acts that allegedly caused a plaintiff to become infected. He’s said that he’s going to push for a law to prevent such lawsuits. “We probably will do another bill. What I’m saying is it won’t just be about money,” McConnell told Politico last week. “The next pandemic coming will be the lawsuit pandemic in the wake of this one. So we need to prevent that now when we have the opportunity to do it.” So, if the Republican from Kentucky has his way, your boyfriend won’t be able to even file suit.

But say McConnell’s bill never materializes. Then your boyfriend will have to prove that he caught the virus at a specific restaurant, instead of any of the other places he’s been. Since the coronavirus is believed to be transmitted person-to-person, via respiratory droplets, it’s not like a case of food poisoning (also tough, but not impossible, to litigate), since it’s not linked directly to the food he ate.

Speaking with the SF Chronicle, Stanford law prof Robert Rabin (an expert on what we might call “accident law”) says that it’s “very tricky in these cases...to show a causal link.” He was speaking with the Chron about lawsuits from workers (like the hypothetical infected server above), but the same logic applies to patrons. “You’re exposed to other people, family, maybe friends, if you take the train to work, if you go shopping. You have to show it’s more likely than not” that the infection came from your night out at a restaurant, and, unless we’re talking about a situation like the Legionnaires’ Outbreak of 1976, that’s going to be a bear to demonstrate in court.

This response is probably going to make your boyfriend even more of a bummer than he was before because based on what you’ve told me, he only wants to go out if he’s got legal recourse if he later falls ill. Once things open back up, perhaps this list of spots to eat solo will come in handy, and, hey, you can always grab him a to-go order when you’re ready to head back home.