Mitigating the Risk of COVID-19 Premises/Contagion Lawsuits
April 30, 2020
It is no secret that businesses gearing up to re-open risk exposure to COVID-19 “premises/contagion” liability lawsuits.  Plaintiffs are expected to file lawsuits claiming they contracted COVID-19 as a result of a business’s negligence when they visited its location, such as a retail store, office building, or apartment complex.  These plaintiffs will assert that they suffered injury due to the premises owner/lessor/property manager’s unreasonable action or inaction in not keeping the premises free of the novel coronavirus.  The plaintiffs may seek an award of money damages for their pain and suffering from the disease and perhaps even ask for punitive damages on the theory that the business was not only negligent, but also grossly negligent or reckless.

What can a business do to eliminate or at least mitigate the risk of facing such a claim or being held liable?

Ideally, federal and state laws could be adopted to provide immunity from such claims. Indeed, Utah recently passed legislation along these lines.  If signed into law, that legislation would provide immunity in Utah “from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on the premises owned or operated by the person, or during an activity managed by the person.”  Some members of Congress and the President have discussed adopting similar legislation at the federal level.

The business community would wildly applaud the adoption of a national immunity law by Congress.  But the chances for such tort reform – or even on a state by state basis – are not necessarily high and at least for now cannot be relied on to protect against COVID-19 premises/contagion lawsuits.  And, even if an immunity law is adopted, it may not apply to all claims of this nature.  For example, the Utah legislation accepts COVID-19 exposure claims in cases of “willful misconduct,” “reckless infliction of harm,” or “intentional infliction of harm.”

In the absence of legislative relief, any business would be well advised to formulate and implement measures to reduce the risk of being sued and held liable over COVID-19 exposure.  To that end, and as a general principle, the law will protect against negligence claims to the extent that the premises owner/lessor/property manager exercises “reasonable” care to safeguard customers and others who legally enter their premises. 

What is “reasonable” in the context of COVID-19 will depend on the circumstances.  The size of the premises and scope of the business conducted on it could come into play.  For example, the law may treat the owner/occupant of a property with large square footage differently than a small store owner.  The economic feasibility of implementing safety measures, including cost, also could be a factor.  Other factors might include the volume of traffic generated at the location and to whom the locale caters:  What a department store, sportsplex or theme park will need to do to protect its patrons against COVID-19 spread – and itself from liability – will differ from the steps the owner of an office building or half-empty commercial warehouse building might need to implement.  At the same time, reasonableness for an office of a medical services provider heavily visited by elderly patients could be judged on an entirely different basis.  In short, one size will not fit all.

Of course, there are some common, reasonable “best practices” to implement in an effort to avoid premises/contagion liability.  These have been widely publicized and include such things as regularly cleaning and disinfecting the premises; mandating social distancing on the premises and posting signage to that effect; limiting the number of persons within the premises; instructing persons not to enter the premises if they are experiencing COVID-19 symptoms; providing face masks and hand sanitizers; assuring that employees do not come to work if they are experiencing such symptoms.  The list can and does go on.  Businesses also may wish to consider using technological measures to thwart exposure to the coronavirus.  These may include readers at entrance gates to scan if a person has a temperature, or tracking systems to trace the sites/persons with which/whom an employee that is later diagnosed with COVID-19 came into contact.  Depending on the circumstances, there could come a time when it would be unreasonable for a business not to utilize such devices, especially if their use is or becomes the norm in the industry.

Which leads to four bottom-line points. 

First, a business should document the list of “reasonable” best practices and policies that it actually adopts and employs.  A business will need to prove in court, if it unfortunately comes to that, that it acted reasonably and responsibly.  In that regard, it may be a good idea to create a guidebook for employees, or to post policies on a company intranet site, containing the rules governing the business’s operation until the pandemic subsides.  However, knowledgeable attorneys should be consulted strategically and their advice heeded to limit the ability of plaintiff’s counsel to use any such guidebook or published policies for the plaintiff’s own nefarious reasons.  Furthermore, guidebooks and policies can be effective only if company personnel actually follow them.  Therefore, it is imperative for a business to regularly remind personnel of its guidebook and policies and their obligation to follow the rules therein.  Of course, the business also must take steps to assure that the rules in fact are followed. 

Second, the COVID-19 pandemic, by its nature, is widespread and we still have much to learn about the disease.  That means that all the seemingly reasonable prophylactic measures in the world to counter it – short of a currently unavailable vaccine – may not be enough at this time.  While the importance of acting properly and responsibly to protect customers, employees and visitors is paramount and cannot be emphasized enough, those businesses susceptible to potential premises/contagion lawsuits should recognize that one of the most effective defenses in most jurisdictions to any such liability claim is the plaintiff’s assumption of the risk.  Thus, knowledgeable counsel can assist a business to craft – where and only as appropriate – language and means for communicating warnings to preserve this defense notwithstanding the necessity for a business also to take measures to thwart COVID-19 at a given locale. 

Third, any business must understand, respect and follow governing statutes and regulations.  For example, privacy, housing discrimination, eviction moratorium and other such laws, rules and orders will restrict the ability of a business and the individuals who run it from taking certain measures – even for the wholesome purpose of stopping COVID-19 exposure.  Likewise, CDC and similar official guidance should be followed.  Because employers also risk facing lawsuits by their employees on similar theories, and notwithstanding the possible application of workers’ comp liability limitations, a business may need to take into account OSHA regulations as well as state and local employment laws, regulations and dictates, too.  Obtaining knowledgeable legal counsel obviously can help a business navigate these thickets.

Finally, it is very easy for a plaintiff to file a lawsuit.  Following these points, therefore, may not be a “magic bullet” to prevent a business from being sued.  However, if a business adopts the strategies set out above – as may be appropriate for its potential vulnerability – it should reduce the likelihood of the business being sued and bolster the business’s chances of prevailing in a COVID-19 premises/contagion lawsuit.
 
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We at Kelley Drye look forward to assisting you prepare and implement a plan of action to reduce the risks posed by COVID-19 exposure/contagion lawsuits. Please contact Ira Kasdan [ikasdan@kelleydrye.com; (202) 342-8864] or Joe Wilson [jwilson@kelleydrye.com; (202) 342-8504)] if you have questions.