By: Joan Cerniglia-Lowensen, Esquire
The presence of COVID-19 is likely to develop a new area of premises liability law that establishments will be confronting over the next several years. The business invitees as well as employees that are infected, risk causing an outbreak to other business invitees. Though general premises liability law will likely control these lawsuits, the often daily changing recommendations offered to the businesses that have been deemed “essential” will likely, as our country slowly moves toward opening back up for business, apply to the “non-essential” retail, entertainment, recreation, hospitality and restaurant businesses and play an important role in premises liability suits involving the virus moving forward. .
In general, premises liability is a legal concept that dictates a proprietor’s responsibilities toward business invitees. The proprietor must make safe or warn of any known dangerous conditions. A concept that has not yet been decided by courts is whether the general knowledge of the potential for a high level of spread of COVID-19 will constitute notice to the proprietor or fair warning to a customer. Assuming that notice is imputed on the proprietor, general premises liability law would require that proprietor, in light of the pandemic, warn customers and use reasonable actions and take reasonable precautions to protect their patrons from becoming infected.
This would likely require the proprietor to keep track of and implement the changing recommendations advanced by the Center for Disease Control (CDC) and other federal and state healthcare officials in light of the pandemic. Presently, this would include such measures as requiring patrons to wear masks, designating six foot distances between customers, ensuring availability of sanitizing products, thorough and regular cleaning of the premises and providing separate shopping hours for a vulnerable population.
As the recommendations change a, the prudent proprietor should keep track of when the recommendation was made, how they implemented the recommendation and when they implemented the recommendation. Though this will not prevent suits, it will certainly make the defense of these claims easier.
Another element of establishing premises liability that may prove helpful in defending these types of claims is causation. The plaintiff has the burden of showing the relationship between the breach of the proprietor’s duty and the harm to the patron, sometimes referred to as proximate cause. If an individual is infected with COVID-19 and suffers harm as a result they must be able to establish that they were infected at the proprietor’s premises. This may prove difficult as there is potential for the virus to be anywhere others infected with the virus have been. If a patron making a claim went to work, got gas, went to a pharmacy and then got groceries, it will be very difficult to establish at which premises they were infected.
One possible scenario where causation may be able to be established is if the proprietor has known employees with the virus and allows them to continue to work at the premises. To mitigate this potential, employers must create a mechanism for employees who are ill or have been exposed to the virus, to not return to work under the guidelines offered by the (CDC). The employee handbook should be supplemented to comply with these guidelines and each employee should be made aware of these changes and indicate their understanding of and willingness to comply.
As our country slowly moves toward the stage of opening back up for business, proprietors must carefully balance the need to get their businesses up and running with the need to ensure they are complying with their duties in warning their customers and keeping them safe. If all businesses do their part this will go a long way in keeping people safe, getting our economy back on track and protecting them from potential premises liability claims.
Joan Cerniglia-Lowensen is a Member with Pessin Katz Law, P.A. (PK Law). She has over twenty five years of civil litigation experience throughout the State of Maryland in both state and federal courts. Prior to becoming an attorney, Ms. Cerniglia-Lowensen was a registered nurse achieving both a BSN and a MS with a major in nursing. As an attorney, she primarily practices in the health care defense field. She defends nurses, doctors, veterinarians, dentists, healthcare providers, healthcare facilities, mental healthcare workers, urgent care facilities and nursing homes in medical malpractice matters; professional liability and tort claims; and disciplinary actions before various regulatory boards. She provides risk management advice to a variety of healthcare entities, insurers and individuals and continuing education to healthcare workers and entities; and has been published in both journals and texts on issues of risk management and liability of healthcare professionals. She also defends individuals and entities in a variety of civil litigation matters. She can be reached at 410-339-6753 or firstname.lastname@example.org.