What do Basquiat and COVID-19 business liability have in common?
Fine art painter Jean-Michel Basquiat was a media sensation while he was living, and his posthumous fame has never waned. Recently, his 1982 painting, Humidity, valued at $12.2 million, was at the center a lawsuit dismissed by the Southern District of New York, on the issue of whether COVID-19 is a "natural disaster," "Act of God," and included by implication in any force majeure doctrine of business contracts. The Court ruled that it is. This could open the door for many other businesses to avoid liability for failing to meet their contractual obligations due to the pandemic.
An auction house was set to sell the painting in May, 2020, but was unable to take possession of the artwork due to COVID-19 lock down. Lawsuits were filed. For a while, the painting itself was sued.
The Court rejected the theory that the pandemic was too dissimilar to other examples of natural disasters of the past to be included in the definition now, and said it is the very embodiment of "natural" and "disaster".
For businesses, immunity is sought not against the virus but against liability, and, in some cases, businesses have been successful in invoking COVID-19 as a means to do so.