Law in the Marketplace: Protecting your shop from coronavirus claim

For the Monitor
Published: 8/22/2020 12:28:12 PM

You are the owner of a charming little widget shop on Main Street in Anytown, NH. You are concerned that a customer who visits your store – we’ll call her “Alice” – might bring a major lawsuit against you personally and against your store on the ground that because of your negligence, she contracted the coronavirus.

You are aware that under New Hampshire law, both your shop and you personally may be liable for negligence if you fail to take reasonable care to protect visitors to your shop from the coronavirus; and all of your personal and business assets may be at risk in Alice’s suit.

You are also aware that you may be liable to the state of New Hampshire for civil penalties for failing to comply with New Hampshire coronavirus rules applicable to your shop.

Under the governor’s coronavirus executive orders, other applicable law and common sense, what will constitute reasonable care on your part in order to resist Alice’s claim?

The answer will vary from business to business, and I cannot give you a legal opinion in response to your question. The governor’s guidelines for all types of New Hampshire businesses can be found at You can find the guidelines applicable to your shop under the “Retail Establishment” section under that link.

Here, however, are the basic guidelines of which you should be aware:

■You and your staff must wear masks at all times in your shop, you and they must socially distance, and you and they must regularly sanitize the shop in compliance with Gov. Sununu’s coronavirus executive orders.

■You must have a clearly visible sign outside your store advising potential visitors that they may not enter your shop if they have any coronavirus symptoms and that at all times while they are in your shop, they must wear masks covering their nose and mouth and they must socially distance.

■You must develop a process for limiting the number of customers inside your store at any given time, excluding employees and representatives of third-party delivery companies, to 50 percent or less of permitted store occupancy based on New Hampshire’s Building and Fire Code.

■You must monitor your shop continually to ensure that all visitors to it wear masks over their noses and mouths and socially distance, and if you see any visitors who fail to do so, you must promptly ask them to leave. Furthermore, if they refuse to leave when asked, you should advise them that if they do not leave, you will be forced to call the police.

■However, it is possible that particular customers may be failing to comply with the above requirements because of disabilities covered by the Americans with Disabilities Act or for other valid reasons. These customers may well require and deserve special accommodations and assistance.

In short, your question requires a somewhat complex answer. But the basic answer is: a sign, sanitizing, masks, the six-foot rule and reducing capacity.

(John Cunningham is a Concord tax and business lawyer. He has published “Limited Liability Company Operating Agreements” and “Maximizing Pass-Through Deductions under Internal Revenue Code Section 199A.” Both are the leading books in their fields. John wishes to acknowledge the assistance of Griffin Kmon, a second-year student at UNH Law School, in the writing of this column.) 

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