With Covid-19 spreading across the U.S. and some places reclosing in reaction to the new surge, considered against a backdrop of more than 2,000 new statutes, regulations and executive orders addressing the pandemic that have been enacted in a matter of months, many commercial real estate owners are questioning if they can be liable for damages when someone, whether an employee of a business tenant or someone else, claims to have contracted the Coronavirus Disease (Covid-19) at their building?

And these questions are not unfounded because as of November 1, 2020, legal industry databases of state and federal litigation are tracking more than 6,100 cases involving Covid-19 claims.

But U.S. courts have never addressed a pandemic like SARS-CoV-2 (the current designation for what had been the Novel Coronavirus 2019). There was not a mature plaintiff’s bar during the 1918 Spanish flu. This evolving and rapidly changing experience is and likely will continue to be governed by state, and sometimes local law that varies from jurisdiction. Over time coronavirus pandemic exposure claims may result in a new emergent subset of premises liability case law and in a number of jurisdictions new statutes are already limiting liability, but in most instances it is presumed the longstanding body of premises liability law will control.

In premises liability cases in Maryland, the state’s highest court has adopted the general rule, also applied in a majority of states with some variations, contained in Restatement (Second) of Torts § 343 (1965) that provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.”

It is widely accepted that while a property owner owes a duty to exercise ordinary care to keep the premises in a reasonably safe condition, it is not the insurer of the invitee’s safety. Moreover, an invitee cannot maintain a negligence suit merely from a showing that an injury was sustained in the defendant’s building.

No tort case has yet provided an answer to a building owner’s liability for failure to enforce social distancing or to wear a mask, or for that matter to take the temperature of all invitees.

As early as March lawsuits had already been filed in courts in San Francisco and Miami against Princess Cruise Lines Ltd. alleging negligence that passengers on cruise ships became ill with Covid-19 because the ships did not employ proper screening protocols and more.

Historically, state courts have awarded damages for negligent transmission of diseases imposing liability on individuals who have harmed others (from occupational diseases like silicosis inhaled while grinding steel, to cotenants in a two apartment house infected with tuberculosis, and having unprotected sex and transmitting AIDS).

There are likely intervening issues, including significantly that legal action by employees is almost all barred and claims limited to the workers’ compensation system where the employer has insurance (and despite defying the facts, at least 15 states now have an interpretation that assumes an individual who contracts Covid-19 was infected in the workplace triggering workers’ compensation). And while OSHA is providing guidance through a May 19, 2020 Updated Interim Response Plan the agency has issued no new mandates and in fact has announced enforcement discretion as to existing standards, which will further bar employee claims; although many expect that a Biden Administration OSHA will issue an emergency temporary standard which will establish mandatory workplace rules.

Customers, as well as business invitees and even trespassers might be able to articulate some claim, but proof during a pandemic that exposure was in a particular building will likely face insurmountable causation problems not to mention an inability to prove some breach was the proximate cause of the harm?

All of this begs the question if a business owner’s premises liability insurance covers such claims? And while reviewing insurance policies, it is also likely prudent to review liability provisions in tenant leases.

While there are more than 2,000 new federal, state and local statutes, regulations and executive orders enacted in a matter of months to respond to the pandemic, likely more than have ever been enacted in the U.S. on a single topic in such a short period, few have directly impacted matters of liability. Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Utah and Wyoming have each enacted liability shields for civil claims related to SARS-CoV-2 by a newly enacted statute, and of course there are differences between the enactments and what is shielded; and not all would protect a building owner. Alabama and Arkansas’ liability shields were enacted by executive order. Other states have legislation pending. There, of course, has been discussion in Congress about limiting liability for everything from grocery stores and pharmacies to others that have provided essential services, and some lawmakers have discussed eventually making similar protections universal.

I am not aware of any cases interpreting those new laws. I did write an earlier blog post about a concomitant matter, A Force Majeure Decision during the Covid-19 Pandemic.

These are uncharted waters, but exercising reasonable care may be adopting conduct by following available government guidance, including from the CDC and states about buildings. California offers widely quoted guidance on reopening.

And while there is some very good information about reopening in the real estate marketplace including from the U.S. Green Building Council that rolled out a series of pilot credits, including the well regarded Safety First: Managing Indoor Air Quality During COVID-19 credit. But caution must be observed when following third party advice; for example some of the green building industrial complex required cleaning products and disinfectants necessary to achieve a rating system credit are not on the EPA List N of disinfectant products that have qualified for use against SARS-CoV-2 and could expose a building owner to legal jeopardy.

There is a great deal of uncertainty, at this time when we are still learning about this coronavirus. I wrote in an earlier blog post, COVID-19 in Buildings is all about Ventilation, making clear that “until effective vaccines exist and are in wide-spread use, enhanced ventilation in buildings will be key, and even more significant than the important social distancing including community masking, and hand washing, in limiting the spread of SARS-CoV-2.”

There are some things a building owner should likely do. Most state premises liability law provides a duty of a property owner to warn a business invitee of an unsafe condition and while it might sound silly in this instance, posting warning signs is prudent. The CDC has provided some printable signs at the link above that serve to warn and also may allay the concerns of those entering a premises, another key issue. Additionally, some of the newly enacted Covid-19 liability shield laws require specific warnings be posted.

But a building owner should likely not adopt policies that it seeks to impose on others. Arguably there could be liability for failing to reasonably or consistently enforce a self created policy. However, should an owner determine to articulate some Covid-19 policy, it should include a disclaimer, like this one created for a business owner that occupied its own building:

Disclaimer: While the strategies embodied in these policies are intended to help promote health and safety in the built environment, an individual’s health and safety are determined by a number of factors particular to that individual and implementing the strategies in these policies do not in any way guarantee that the individuals in a space will be safe, healthy or healthier, nor that the space will be free from bacteria, viruses, allergens, volatile organic compounds or other pathogens; and the content of these policies does not constitute the provision of medical advice nor is does it represent all possible strategies that may be implemented or recommended to promote health and safety.

Some have asked those coming on their land to sign liability waivers, including notably President Trump’s reelection campaign had supporters sign liability waivers at a Tulsa, Oklahoma rally.

The coronavirus pandemic is obviously unprecedented, and as such it is not possible to predict with any degree of certainty how a court might rule on premises liability or other exposure claims, however, the legal reasoning above may provide guidance on the role of law in this pandemic and possibly mitigating the legal risk to commercial building owners.

While much is still being discovered about this novel coronavirus I have been asked about our business’ adaptations. We believe the best approach to keeping people safe and mitigating risk to owners of buildings is to employ a variety of interventions. In our personal law offices we trust in technology and innovation and we have never closed our offices, but rather after posting warning signs, we adapted our operations, by way of example having stopped recirculating indoor air, increased airflow, upgraded to MERV 13 air filters, and disinfecting air with UV-C light, in addition to social distancing including community masking and hand washing, in our war with SARS-CoV-2.

With more than 6,100 cases involving Covid-19 claims pending, building owners should track liability shield laws in their jurisdiction (.. including because some require warning signs). And it is important that all mitigate the risk in the coronavirus pandemic operation of their building or face the legal risk being another victim of this disease.