Movie Theater Patrons and the Novel Coronavirus

May 8, 2020Article

I love going to the movies. For the past several years, I have taught Sunday school classes on the spiritual or religious messages underlying Oscar-nominated films. Thus, I have spent countless hours viewing films exhibited on the big screen surrounded by other patrons, who are also enjoying their popcorn and Coke. Experiencing movies in a theater is very different from viewing them on a couch at home. There is a sensation, a scale, a camaraderie, and an energy at the cinema, which I fear will be gone with the wind because of SARS-CoV-2, the novel virus that causes COVID-19.

The status of a potentially injured claimant determines the duty of care that a movie theater has to those attending a film. Georgia recognizes three types of status that determine the level of care that a premise owner, such as movie theater, owes a potential injured claimant. Those statuses are a trespasser, an invitee, or a licensee.[1] “‘[A] trespasser is one who, though peacefully or by mistake, wrongfully enters upon property owned or occupied by another.’”[2] An invitee, on the other hand, is someone who, by express or implied invitation, has been induced or led to come upon premises for any lawful purpose.[3] Generally, a person may be deemed an invitee if his presence on the property is of mutual benefit to both him and the landowner.[4] A licensee, which falls between the two, is one who is permitted, either expressly or impliedly, to go on the premises of another, but merely for his own interest, convenience, or gratification.[5] In other words,“[t]he elements of legal liability of the owner of premises for injuries occasioned to persons thereon vary according to whether the person injured was, at the time of the injury, a trespasser, a licensee, an invitee express or implied, or a person standing in some special relation recognized by law.”[6] A landowner owes the duty of ordinary care to an invitee.[7] A landowner owes a lesser duty — to avoid causing willful or wanton injury — to a licensee.[8] “To determine whether a person is an invitee or a mere licensee, the nature of his relation or contact with the owner or occupier of the premises must be determined … at the time of the injury. …”[9]

In the context of a movie theater, a trespasser might be a person that attends the movie without a ticket and without the permission of the theater owner. In this sense, the trespasser is also a thief of services. Under this scenario, an invitee would be a ticketed-movie patron, while a licensee would be the friend of a movie- theater worker, who is on the premises to socialize with that worker, while she is on duty.

Under O.C.G.A. § 51-3-2, the owner or proprietor of the premises is liable only for willful or wanton injury to a licensee, whereas under O.C.G.A. § 51-3-3, the landowner or occupier owes an invitee the greater duty to exercise ordinary care in keeping the premises safe. The duty owed to a trespasser is lesser, to not willfully and wantonly injure the trespasser.[10] A premises owner owes a nondelegable duty to protect the business’ invitees from injury.[11]

The object and purpose of O.C.G.A. § 51-3-1 is to require the owner or occupier of the premises to exercise ordinary care in keeping the premises safe for an invitee.[12] Under either O.C.G.A. § 51-1-2 or O.C.G.A. § 51-3-1, tort liability is barred when the plaintiff, with actual knowledge and subjective appreciation of the risk, undertakes an obvious danger on the premises.[13] The “equal knowledge rule” is the practical application of the concept that a knowledgeable plaintiff cannot recover damages if, by ordinary care, the plaintiff could have avoided the consequences of the defendant's negligence.[14]

Notwithstanding the status of the claimant, in a cause of action for negligence, each claimant “bears the burden of establishing four essential elements: (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the [claimant’s] legally protected interest as a result of the alleged breach of the legal duty. The legal duty of care owed by a landowner to a person coming upon the property varies and is fixed according to the legal status of the person entering the premises. A landowner owes the highest duty — the duty of ordinary care — to an invitee. A landowner owes a lesser duty — to avoid causing willful or wanton injury — to a licensee.”[15]

Turning to the SARS-CoV-2 or COVID-19 and its impact on movie theater owners and patrons under premises liability law in Georgia, there is little direct guidance. The most analogous situations seem to involve Legionnaire’s disease and Pontiac fever, which are devoid of Georgia appellate cases.[16] Although analogous, the situations are not identical because Legionnaire’s is a water-borne pathogen and SARS-CoV-2 appears to be an airborne and surface-borne pathogen. Cases of Legionnaire’s disease and Pontiac fever are caused by exposure to Legionella bacteria, which occurs naturally, within man-made water systems. Water and water droplets transmit the Legionella bacteria. There are safety and medical protocols, including antibiotics, for treating Legionella bacteria. Those same safety and medical protocols are absent or not as robust in the context of COVID-19. So what are the movie theater owner and patrons supposed to do under Georgia law?

The movie theater owner must exercise ordinary care to protect its patrons. At a minimum, that means that the movie theater owner should enforce social distancing throughout the theater, including its lobby, concession counters, and other areas. The movie theater owner should continuously disinfect surfaces to avoid viral contamination and infection of its patrons. Ordinary care could also include the movie theater owner requiring, or at least requesting, patrons to wear masks to limit the possibility that a viral pathogen might spread on its premises. In addition, the movie theater owner should consider increasing the interval between showtimes to allow for disinfection of the theater between showings. This precaution will likely necessitate the movie theater owner to provide personal protective equipment for its employees. While these measures might disrupt the pre-COVID-19 flow of business, precautions should be considered to guard against potential liability.

Because of the long incubation period for COVID-19, any claimant against a movie theater owner will have difficulty making a claim. A claimant would need to show a causal link between the infection and the premises, which would be very difficult when dealing with an airborne or surface-borne virus. A claimant would need to control for other possible infection vectors to establish that the movie theater was the place of infection. Although a claimant’s burden might be lessened if there were a cluster of infections at the theater, it is a significant burden. Further, in light of the lockdowns that various governmental entities have issued and the public service announcements about avoiding COVID-19 infection, any claimant would have to establish that the movie theater owner had superior knowledge to a claimant and that a claimant exercised ordinary care for her own safety during a pandemic. Ordinary care on the claimant’s side could include wearing a mask in public, using hand sanitizer, and, perhaps, using other personal protective gear such as gloves during the movie-going experience.

While the ultimate fallout from COVID-19 remains to be seen, experiencing movies in a crowded movie theater is likely to look significantly different in the coming weeks, months and possibly years.

Author: Carl H. Anderson, Jr. (Partner, Atlanta) Editor: S. Christopher Collier (Senior Partner, Atlanta)

Hawkins Parnell & Young's national litigation team is helping businesses across the United States navigate unprecedented legal challenges arising from the COVID-19 pandemic. Visit our COVID-19 Resource Center for the latest insights and guidance.

[1] See Howard v. Gram Corp., 268 Ga. App. 466, 467, 602 S.E. 2d 241 (2004).

[2] Gomez v. Julian LeCraw & Co., 269 Ga. App. 576, 578, 604 S.E. 2d 532 (2004).

[3] See O.C.G.A. § 51-3-1.

[4] See Todd v. Byrd, 283 Ga. App. 37, 40, 640 S.E. 2d 652 (2006).

[5] See O.C.G.A. § 51-3-2.

[6] Cook v. Southern R. Co., 53 Ga. App. 723, 724-725, 187 S.E. 274 (1936).

[7] O.C.G.A. § 51-3-1; Jarrell v. JDC & Assoc., LLC, 296 Ga. App. 523, 525, 675 S.E. 2d 278 (2009).

[8] O.C.G.A. § 51-3-2 (b); Jarrell, 296 Ga. App. at 525.

[9] Armstrong v. Sundance Entertainment, 179 Ga. App. 635, 347 S.E. 2d 292 (1986).

[10] Atkins v. Tri-Cities Steel, Inc., 166 Ga. App. 349, 304 S.E. 2d 409 (1983).

[11] Moon v. Homeowners’ Ass’n, 202 Ga. App. 821, 415 S.E. 2d 654, cert. denied, 202 Ga. App. 906, 415 S.E. 2d 654 (1992).

[12] Irwin v. Torbert, 204 Ga. 111, 49 S.E. 2d 70 (1948).

[13] Sones v. Real Estate Dev. Group, Inc., 270 Ga. App. 507, 606 S.E. 2d 687 (2004).

[14] Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 342 S.E. 2d 468 (1986).

[15] Freeman v. Eichholz, 308 Ga. App. 18, 20,705 S.E. 2d 919 (2011) (physical precedent only as to Division 1); see also Garcia v. KRC Alderwood Trails, 348 Ga. App. 84, 88, 819 S.E. 2d 713 (2018); O.C.G.A. § 51-3-1.

[16] USA Today, “Negligence Caused a Legionnaires’ Outbreak at Atlanta Hotel, Lawsuit says” by Kate Brumback Associated Press, August 12, 2019 (describing an outbreak of 40 cases including one death at Sheraton Hotel in downtown Atlanta allegedly caused by a failure to proper maintain the water system).