As the country looks toward re-opening, there has, rightly, been significant attention paid to how businesses that interact with the public can minimize the chances of their employees contracting COVID-19. There is another side to consider, however, which is how the business can protect its customers from the disease.
General principles of state premises liability law require businesses to exercise reasonable care to protect their invitees (i.e., their customers) from dangerous conditions on or about the premises. Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1205, 36 P.3d 11, 14 (2001) (reaffirming principle that a business owes a "duty to exercise reasonable care in keeping the premises reasonably safe" for its patrons); Bailey v. Graham Enterprises, Inc., 2019 IL App (1st) 181316, ¶ 29, 138 N.E.3d 926, 932 ("An operator of a business owes his invitees a duty to exercise reasonable care to maintain his premises in a reasonably safe condition for their use."); Wallace v. ArcelorMittal Vinton, Inc., 536 S.W.3d 19, 23 (Tex. App. 2016) (describing the "duty to exercise reasonable care to make the premises safe for invitees").
Due to the particular nature of COVID-19, it presents a considerable challenge to avoidance of premises liability claims based on alleged exposure to the disease. The CDC has indicated that the novel coronavirus is spreading "very easily" between people, and more efficiently than influenza. The CDC has further indicated that the virus may have a relatively long incubation period of up to 14 days during which some asymptomatic individuals may be able to spread the virus to others without even being aware of it. As a result, there is a likelihood not only that a business's work force is at risk of infection from fellow employees, but also that customers may be infected either from infected employees or from other customers at the premises, leading to potential claims. As a result, we are likely to see claims alleging that the presence of COVID-19 at a business is a "dangerous or defective condition" and that the business failed to exercise reasonable care to protect its customers from being exposed to the disease.
Importantly, a business leasing its space might not be able to look to their landlords for help in sharing the load of potential COVID-19-related liability: state law may provide that a commercial landlord lacking possession of the leased space is not responsible for dangerous conditions related to the operation of its tenant's business. See, e.g., Day v. Lupo Vine St., L.P., 22 Cal. App. 5th 62, 73, 231 Cal. Rptr. 3d 193, 200 (Ct. App. 2018), review denied (July 11, 2018); Davison v. Wiggand, 259 A.D.2d 799, 800, 686 N.Y.S.2d 181, 182 (1999) ("As a general rule, once possession has been transferred to a tenant, an out-of-possession landlord will not be held responsible for dangerous conditions existing upon leased premises.").
Businesses are not wholly defenseless, however. One area of focus in litigation is likely to be the applicable standard of care, which is used to determine whether a business breached a duty to the customer. It seems reasonable to expect that plaintiffs and courts will look to the official guidance published by the CDC and state and local health authorities to establish the standard of care. Thus, one of the key steps businesses can take now to minimize the risk of liability is to familiarize themselves with and develop policies and procedures to comply with all applicable public health guidelines.
Because every business is different, each business should consider its particular modes and methods of operation, along with its physical space, in determining how to implement them. The business should also develop a compliance policy that will allow the business to verify and document that the guidelines are being adhered to. All of these policies and procedures should be fully developed and implemented before reopening to the public, and they should be clearly communicated and posted in and around the premises. After reopening to the public, the business should ensure that its employees and its customers are adhering to the health policies at all times, with particular emphasis on social distancing, face covering, and sanitation rules. Because the guidelines may be updated or modified at any time, a point person should be responsible for monitoring them so that policies may be changed as necessary.
As compliance with public health guidelines is likely to be a focal point of any litigation, the business should be prepared to curtail or change its method of operating (for example, going back to an all-curbside-pickup model) in the event it is unable to immediately comply with applicable guidelines at the time. Ensuring and documenting continuing compliance with all guidelines will put the business in the best position to show that it met the standard of care and is not liable for any illness in its customer base.
Current guidance from the Centers for Disease Control and Prevention are available here. Many states and local jurisdictions have established their own requirements as well, which may be stricter or in additional to the CDC Guidelines. Thus, a business with a nationwide footprint will need to ensure that each location meets local requirements. Further, federal and local guidelines can be expected to evolve over time, so the importance of keeping current with them and continually updating policies as necessary cannot be overstated.
Article originally published on 7 May 2020
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