Governor Pritzker announced that Illinois is planning to move into Phase 3 of his 5-phase plan called Restore Illinois starting on May 29, 2020. As part of Phase 3, the governor has added a provision to allow restaurants to serve outdoor seating so long as the six-foot social distancing requirements are met.

Bars and restaurants were originally scheduled to reopen as part of phase 4, which also included the opening of schools. We seem to be very far from that phase so it’s a welcome boost to restaurant owners to relax the restrictions currently in place. The question is how the outdoor seating will be managed.

We have some guidance from other areas that have already allowed restaurants to serve patrons outdoors. Many countries in Europe starting relaxing their rules two weeks ago. They were mandated to maintain two meters distance between tables (about the same as six feet), and at least one German restaurant, the Café Rothe, measured that distance by attaching pool noodles to the heads of patrons (you can see pictures here).

But joking aside, Europe has always had a robust outdoor service scene. It’s common to see tables on sidewalks in most European cities. I wonder how we will handle these new guidelines here.

Cities across the globe have adopted a plan to close streets to vehicles so that businesses, primarily restaurants, can expand into the road. They can then serve more customers without violating social distancing protocols. Some large cities that have implemented such plans include Cincinnati and Tampa (article here). This allows them to operate at higher capacity, which is necessary given the normally low-profit margins enjoyed by restaurants and bars.

This reminds me of an article I read a month ago by The Hustle, that discussed the possibility of repurposing parking lots to allow for restaurant seating (here). It turns out that parking lots are not in use right now, given that most people are out of work or working from home. By repurposing them, like we have seen with roads, we create a win-win situation for lot owners and restaurants.

There are still concerns, though. Will patrons return? Will they worry about getting sick, will they want to sit in a parking lot to enjoy their meals? We can look to Wisconsin, where the stay-at-home order was lifted about two weeks ago for some answers about demand for these services.

As soon as the order was lifted, we saw videos and pictures of people packing into bars and restaurants in Wisconsin. That certainly suggests that patrons will return to restaurants in Illinois, but were those videos representative of the actual interest in returning to public eateries?

According to an article by USA Today (here), the data reflected that the number of people who went out after the stay-at-home order was lifted was consistent with the trends leading up to that point. Meaning, people went out, but not in the mass numbers we thought when we saw the videos.

Some bars and restaurants chose to hold off on reopening, despite the order being lifted, and most businesses in Milwaukee and Madison remained closed. The percentage of people traveling outside their home only increased by 3% the three days following the lifting of the order. Therefore, the evidence suggests that demand was present but not in the extreme way portrayed by videos and pictures.

What does that mean for Illinois?

I have maintained since the start that a sudden reopening will not turn the economy back “on” like a light switch. People simply don’t operate that way. Some will go out, and those numbers may be enough to save restaurants, but many will still opt to stay in.

There is no doubt that we need to start taking steps to reopen, and this will definitely help small businesses. The risk is probably worth the reward.

But what about that risk? I read an article a few days ago that included an interview with Amy Webb, who is a quantitative futurist. She stated that movie theaters are unlikely to reopen anytime soon because if people attend a movie and get sick, the theater will get sued.

That got me thinking, can I really sue a movie theater because I got sick attending a movie? Where is the negligence? Prior to COVID, could I have sued for catching the flu at a movie theater? Or at a restaurant?

The duty of care owed to someone coming into a business is well defined in Illinois. The owner must exercise reasonable care under the circumstances (740 ILCS 130/2). They need not take any care for conditions on the premises known to the entrant, normally referred to as an ‘open and obvious’ condition. Essentially, the owner of the premises is under no obligation to even warn an entrant about conditions that are obvious to the entrant.

This normally comes up when discussing slip/fall cases. If a danger, say a pothole, is large and obvious to all visitors, a plaintiff who stumbles into the danger will likely not recover any damages. This is because the plaintiff knew or should have known about the danger and made efforts to avoid it.

Isn’t COVID an open and obvious danger? Certainly, we all understand that by going out we risk catching COVID. I doubt there is an actual negligence claim here. And imagine if a court allowed a plaintiff to collect under a theory that a business owner has a duty to prevent patrons from catching sickness from other patrons. No business would be safe. What possible efforts could a business show to avoid that liability? Perhaps they could put up signs or something? I don’t know. I doubt it will actually come up.

Don’t misunderstand, businesses will need to adopt systems to keep patrons safe. If they don’t, people may not return to their establishment. But to hold them liable for other people’s sickness seems a step too far.

In the end, businesses will start to open over the next few weeks. Hopefully, it will be enough to save most of them. I expect that we will see a percentage of the population take advantage of the reopening, and I doubt we will see any legitimate lawsuits generated against businesses for the catching of COVID in public.