In the COVID-19 era, commercial and residential property owners risk exposure not only to the deadly virus, but also to premises liability. In the past, Florida courts have allowed virus-related premises liability actions, which suggests a COVID-19 premises liability claim may be viable and even successful. This piece will analyze the four elements to possible COVID-19 negligence claims and provide guidance for property owners to reduce their exposure to liability.
1. Duty and Breach
A property owner typically owes two duties of care to those invited onto their property:
- To reasonably maintain the premises free of dangerous conditions
- To warn of hidden dangers
In the COVID-19 era, a plaintiff, such as a restaurant patron, store shopper or social guest, may seek to prove a property owner’s failure to maintain the property in reasonably safe conditions in a variety of ways, including failure to:
- Set up policies and procedures to protect invitees
- Clean surfaces adequately
- Enforce mask wearing
- Follow CDC, OSHA and local government guidelines
Therefore, property owners should be aware of and follow official guidelines and recommendations to reduce exposure to liability.
To prove a property owner’s failure to provide warning, plaintiffs must show that the property owner knew or should have known of the presence of COVID-19 in the premises. On one hand, the nature of COVID-19 likely makes it a hidden danger. As such, plaintiffs may have difficulty proving the property owner’s knowledge of the presence of the virus in the premises. On the other hand, the virus is so prevalent and prominent that a property owner should caution invitees to observe and obey government guidelines, recommendations and requirements.
The second element, causation, will likely pose a significant hurdle for potential plaintiffs. To succeed, plaintiffs must prove that they were infected at a certain location. Yet, the characteristics of the virus – including its asymptomatic nature, possible two-week incubation period and prevalence – may make it difficult to pinpoint inception.
Proving damages may also present a hurdle for plaintiffs. On one hand, plaintiffs may suffer damages, including loss of wages, medical expenses, and pain and suffering, which may be sizeable.1 But on the other hand, a plaintiff’s damages may be due to the impact of COVID-19 on the economy, such as companies going out of business. As such, plaintiffs will have to prove that the specific damages sustained were, in fact, due to the property owner’s negligence.
Property owners have a number of defenses to a COVID-19 premises liability claim. Florida is a pure comparative fault jurisdiction. This means the jury assigns liability to all negligent parties, including plaintiff, and non-parties to a sum of 100%. Under comparative fault, the degree to which a plaintiff may have caused his or her own COVID-19 infection does not bar recovery, unless it is the sole legal cause of the plaintiff’s injury. But it does shift some of the liability to the plaintiff.
Similarly, under the doctrine of implied assumption of the risk, a plaintiff assumes the risk involved in an activity if he or she reasonably should have appreciated a danger, but nonetheless voluntarily became exposed to it. This may be relevant in many COVID-19 premises cases, as potential plaintiffs should reasonably appreciate the danger of contracting COVID-19 when visiting a restaurant, bar, hair salon or friend’s residence.
Property owners should consider using waivers to reduce exposure to premises liability, although we recognize this may not be practical in some facilities. Requiring invitees to sign a waiver acknowledging the risk of COVID-19 before entering a property may bolster an express assumption of risk defense. The downside to waivers, however, is that exculpatory clauses are often disfavored. But, despite the issues associated with enforceability, a signed waiver may also satisfy a property owner’s duty to provide notice of a hidden dangerous condition.
Property owners face exposure to premises liability when invitees claim they contracted COVID-19 at the premises and due to the owner’s negligence. But invitees have large hurdles to overcome in showing that the property owner was responsible for their illness, and property owners have significant defenses to challenge COVID-19 premises claims.