We are posting a series of answers to Frequently Asked Questions and practical advice to consider in the era of COVID-19. These posts are not intended to cover all employee issues or healthcare settings recommendations, but rather are focused on dealing with premises liability involving invitees. Other resources for handling employees include: https://www.osha.gov/SLTC/covid-19/l; https://www.osha.gov/SLTC/covid-19/; https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html. Please review other posts related to COVID-19 published on this blog for additional information. If you have questions specific to your company’s individualized situation, contact Susan Brice (susan.brice@bclplaw.com) or Tom Lee (tom.lee@bclplaw.com). For any employment related questions, please contact the BCLP employment lawyer with whom you work or Lily Kurland (lily.kurland@bclplaw.com), who can provide you with information about guidelines and protocols they have developed to assist employers with these issues.

What Are the Primary Premises Liability Risks Posed by COVID-19?

Outside of cruise lines, we have yet to see a premises liability based on COVID-19. But it is probably just a matter of time. If your premises is tied to COVID-19 exposures, you should be prepared and anticipate potential premises liability claims based upon negligence or gross negligence. Plaintiff law firms have already set up websites educating persons on how to preserve evidence in order to file a COVID-19 premises case, including failure to warn claims.

Premises liability claims require: (1) the existence of a duty to the plaintiff (the extent of which depends upon the relationship between the premises owner/operator and the plaintiff (e.g., invitee vs. licensee vs. trespasser)); (2) a breach of said duty to plaintiff as measured through the applicable standard of care; and (3) that the breach was a substantial factor in causing the plaintiff’s injuries or damages. Based upon a review of other communicable disease cases, such as Legionnaire’s Disease and Zika virus, plaintiffs may argue that a premises owner owes a duty to invitees to: (1) take actions to prevent the spread of the virus at its location; (2) take action to prevent persons from contracting the virus at its location; and (3) to warn if it knows or has reason to know that a person with COVID-19 has been at the premises or the premises is otherwise impacted. See 2 Premises Liability 3d Section 38:1, 38.3 and 38.4 (2019 Ed.). On the other hand, a company could claim that no such duties are owed, given the novelty of the virus, the lack of scientific consensus concerning the transmission of the virus, and that there are no adopted statutes or regulations in place. If a duty is found to exist and is breached, taking into account the standard of care, and the breach of that duty was a substantial factor in causing injury, then the premises owner/operator may be held liable under a negligence theory.

Courts will likely look to the evolving federal, state and local guidance (and eventually statutes/laws) to inform the applicable standard of care. These guidelines are discussed in previous blog posts and include: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html; https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html; https://www.osha.gov/Publications/OSHA3990.pdf. Because some locations are experiencing community spread and others are not, it is prudent to consult your state and local health authorities for any additional guidance unique to your area. For example, the City of Chicago Department of Public Health has set up a website regarding COVID-19. https://www.chicago.gov/city/en/depts/cdph/provdrs/health_protection_and_response/svcs/2019-novel-coronavirus–2019-ncov-.html.

Litigation has already begun. For example, cruise line passengers recently filed an action against a cruise line alleging that the cruise line engaged in gross negligence when it allowed the ship to sail “knowing that the ship was infected from two previous passengers who came down with symptoms of COVID-19.” https://thehill.com/changing-america/well-being/prevention-cures/486807-couple-still-on-grand-princess-cruise-files-1. The lawsuit also claimed that the cruise line owed a duty to ensure its passengers “would not be exposed to unreasonable risk of harm,” that it should have screened passengers prior to boarding and that it was negligent is failing to adequately warn passengers about the potential exposure to COVID-19 prior to boarding the ship. https://www.nbcnews.com/news/us-news/couple-grand-princess-cruise-ship-carrying-coronavirus-patients-sues-1-n1154291.