by Jeff Sovern
This article in the Houston Chronicle says that Texas health laws don't require restaurants to tell diners whether employees have COVID, though some restaurants have voluntarily disclosed that employees have been infected. Health laws around the nation should be amended to prevent employees with COVID from knowingly or negligently working at restaurants, if they don't already so provide, and to require disclosures when an employee has tested positive recently. But in the meantime, common law fraud rules may protect diners. In most states, contracting parties must disclose latent material defects that are unknown to the buyer. Our casebook has a couple of cases on this point, Johnson v. Davis, 480 So.2d 625 (Fl. 1985) and Layman v. Binns, 519 N.E.2d 642 (Oh. 1988). I think that means that if a restaurant doesn't disclose to diners that their server has COVID, the consumers would have a pretty good claim against the restaurant, assuming that the restaurant knew about the condition and that it wasn't obvious.
Re: But in the meantime, common law fraud rules may protect diners.
NOT UNDER THE LONE STAR
You gotta be kiddin’ us. Our all-GOP Texas Supreme Court (9 of 9, no left-right divide and no swing votes) will surely find an elegant common-law way to make sure businesses will not be liable in the end. They have bestowed immunity on government officials and employees (common-law sovereign and governmental immunity) and exempted the entire legal profession from the civil tort system (turning common-law judicial proceedings privilege into “attorney immunity”, which is status-based and not even qualified).
Using their power of statutory (de/re)construction, they recently engrafted a COVID-19 exclusion upon the vote-by-mail provision of the Texas Election Code, doing so remotely from the comfort and safety of home (oral argument over Zoom), denying all Texas voters the option to vote remotely from the comfort and safety of home. Unsurprisingly, the Texas Election Code had nothing to say about coronaviruses, novel or otherwise, and not even about epidemics, so that’s where the judiciary comes in to make (bad) public policy ad hoc, or—as in this case—at the instance of the Attorney General appearing in court as “The State of Texas”.
The Texas Democratic Party was excluded from this original mandamus proceeding brought by the Republican Attorney General against election clerks to bypass a pending case in the Houston Court of Appeals in which the Dems were the AG’s opposing party and had won the first round. IN RE STATE OF TEXAS, No. 20-0394 (Tex. May 27, 2020) https://scholar.google.co.uk/scholar?scidkt=2341330557200120477&as_sdt=2&hl=en
The Texas Dems are now seeking their luck in the SCOTUS, which is a hotbed of leftists by comparison, and may yet grant functionally equivalent relief under the 26th amendment. Having been crushed in state court (and the Fifth Circuit), that’s what they are left to hang their hat on. See TDP v. Greg Abbott, No. 1389. https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public\19-1389.html
Our Common Law Makers (6 Lords and 3 Ladies of the same partisan persuasion) serve six-year terms and aren’t all up for re-election at the same time, so even if Texas goes blue, it will be a while before the Dems have a majority on the SCOTX, with a prospect of dialing back the entities-over-people ethos.
Even then, the weight of decades of entities-favoring precedent (both state and corporate) will be heavy.
WPHDMPHD (Houston, TX)
(Feel free to disclose my name at your discretion. I am on record as a frenemy of the court and regularly submit futile amicus briefs in the faint hope of eventual vindication, perhaps post-mortem, or, in light of current conditions, post-pandemic).