The owner, staff and a gaggle of recent guests at the Big Moose Inn in Millinocket know all about the court of public opinion, where they’ve been front and center since a now-infamous outbreak of COVID-19 occurred at the northern Maine resort during the first week of August.
Still to be determined, though, is how they all might fare in a civil court of law.
“It’s complicated,” Jeff Thaler, a Maine attorney and professor at the University of Maine School of Law, said in a phone interview Friday.
More on the professor in a minute. First, where we are and how we got here:
On Aug. 7, the Big Moose Inn hosted an indoor wedding reception for 65 people – 15 over the limit mandated by the state for such gatherings during the COVID-19 pandemic.
A guest who was not connected to the gathering later told the Portland Press Herald that he saw little if any social distancing among the revelers and only one or two face masks, leaving him with the impression that the establishment “played fast and loose with people’s safety.”
Just over three weeks later, the COVID-19 outbreak in Millinocket has spawned two more outbreaks – one at a nursing home in Madison and the other at the York County Jail. All told, according to the Maine Center for Disease Control and Prevention, 123 cases of COVID-19 are now traceable to the reception. One woman, who didn’t attend the event but was infected either directly or indirectly by someone who did, has died.
On Wednesday, citing a number of ongoing violations detected during a follow-up inspection, the state pulled the inn’s health license. Two days later, after correcting the deficiencies, the inn got its license back.
Meanwhile, the finger pointing abounds. Some blame the couple for holding the wedding in the first place. Others blame the guests for failing to follow well-known COVID-19 safety guidelines. And still others condemn the inn for not cracking down on the partiers when they failed to don masks and keep their distance.
Perfectly predictable opinions, to be sure. And hanging over them all is a question that will likely dog this and similar outbreaks for years to come: Who’s liable?
Back to Professor Thaler.
To prove negligence under Maine’s tort law, Thaler explained, one must clear three basic hurdles:
The first, he said, is to demonstrate that “the defendant owed the plaintiff some kind of duty.” As in, if I come into your establishment, you have a duty to reasonably protect me from contracting COVID-19.
Second, a plaintiff must show that duty was breached. Exhibit A: all the sick people.
Third, the claimant must establish that the breach of duty was a “proximate cause” of the damage suffered, be it pecuniary (bills, lost income) or soft damages (emotional distress, loss of quality of life). Exhibits B, C and D: an illegally large crowd, an absence of face masks and a lack of enforced social distancing.
But wait, there’s more. Maine liability law operates on the principle of “comparative negligence,” meaning before a jury can award damages, it must weigh the plaintiff’s own negligence against that of the defendant and make its damage award proportional to that split.
And if the jury determines that the plaintiff and defendant are equally negligent? Under Maine law, Thaler said, “if the claimant is found by the jury to be equally at fault, the claimant may not recover (damages).”
Therein lies the sticky part: If I walk into a public establishment without a mask on, and I flat-out ignore the signs advising me to put one on and maintain my social distance, do I share some of the responsibility when I later come down with a case COVID-19 traced back to that establishment?
I’m going to go out on a limb here and say yes. The more I pooh-pooh a business’s efforts to keep me and others safe, the less sympathy I’m going to get from the jury box.
But say, on the other hand, I enter a store wearing an N-95 mask, plastic face shield and gloves and no other customers or staff are taking any precautions whatsoever. Would common sense not suggest that my “comparative negligence” goes down while that of the business goes up?
Undoubtedly, most juries would wonder only how many zeroes to put at the end of my check.
Now, a sidebar question: Almost six months into the COVID-19 pandemic, with so many emotions flying in myriad directions, where are all the lawsuits?
A few states actually have passed laws shielding businesses from COVID-19 liability, while the Republican-led U.S. Senate has its eye on granting nationwide immunity. But Maine and many other states currently have no statutory impediment to marching down to the courthouse and filing a COVID-19 civil complaint.
“It’s interesting,” Thaler agreed. “People have died and people have been sick and I have not seen or heard of that explosion yet.”
(The operative word there being “yet.”)
Thaler sees a parallel between the dearth of COVID-19 liability cases and a predicted spike several years ago in litigation over mold that fell far short of expectations. More often than not back then, he said, people suffering from mold-related health problems had difficulty pinpointing to a jury’s satisfaction how and where they were exposed.
Much like the COVID-19 virus, Thaler said, “mold is in the air everywhere. … You don’t know where the mold is that’s caused the breathing problems or other things for the victim. So (potential plaintiffs) suddenly realized they didn’t know who they could sue or how they were going to prove it.”
Similarly, with COVID-19, if you get sick in a hot spot rife with community spread, good luck asserting that you got it during a trip to your local mom-and-pop store.
Still, if you’re in relatively COVID-free northern Maine and you’re one of 30 people who attended a wedding reception and then tested positive – or one of the scores of secondary or tertiary victims who were subsequently infected elsewhere – there’s little room for doubt that it all started with that reception.
Which brings us back to Millinocket.
On Friday, after weeks of silence “out of respect for the wedding party and family,” Big Moose Inn owner Laurie Cormier finally issued a statement that walked a tightrope between public contrition and potential liability.
She noted that the inn mistakenly decided the 50-person limit only applied to individual function rooms – not the whole building. By splitting the reception into two rooms and mistakenly assuming everyone would stay put, she said, “we did make an error in the interpretation of that rule.”
Cormier also conceded, “While we cannot be sure the virus was fully spread at our facility, we know that there are things that we can be doing better.”
An appropriate message, no doubt, for the public square.
We’ll see how it plays in the courthouse.
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