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May 2020
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May 06, 2020

Mitigating Premises Liability Risks Posed by COVID-19

Premises liability is a negligence claim which seeks recovery from a facility for an injury allegedly caused by an unsafe condition on the premises. Such claims typically allege that those in control of a facility owe a duty to take sufficient precautions to prevent unreasonably exposing its guests to unsafe conditions on-site, but they failed to do so. Any facility open to the public or with customers, contractors, vendors and others regularly on-site, and tied to an on-site COVID-19 contamination, is a potential target for such a claim. 
 
This post does not address employee and worksite issues related to COVID-19. For resources on handling employee and worksite issues, please listen to a recording of our recent webinar titled, “Labor and Employment Update: Preparing the Facility for Operations after COVID-19.” The focus here is on the extent of a facility’s duty to take COVID-19 precautions for its on-site business invitees and the steps a facility can take to mitigate its premises liability risk. 
 
Entity Responsible for the Premises
 
In general, a plaintiff filing a premises liability claim must prove the entity responsible for the premises: (1) owed a duty to take certain precautions to make the premises reasonably safe for the plaintiff; (2) the entity breached its duty by not taking sufficient precautions; and (3) the entity’s failure to provide a reasonably safe premises caused the plaintiff to suffer an injury and loss. 
 
In Michigan, the entity responsible for the premises is determined by who is in “possession and control” of the subject part of the facility. That can be, but is not always, the owner of the facility. An owner, for example, may lease some or all of the premises for someone else to conduct its business or operations. In such a situation, the lease often designates whether the landlord or tenant is in control of a particular part of the facility. If the lease does not clearly say who controls that part of the facility, courts often look at the action of parties – including who actually possesses, operates and maintains that part of the facility – to determine who controls it. Whoever ultimately controls the part of the facility in question may have an obligation to take certain COVID-19 precautions.
 
Taking Sufficient COVID-19 Precautions
 
What precautions may be required of a facility depends on whether the injured party is on-site as a trespasser (without permission), a licensee (social guest) or an invitee (customer or business guest of the facility). Under most circumstances, a facility has no duty to take COVID-19 precautions for a trespasser. And, while a facility has a general obligation to maintain a reasonably safe premises for its licensees or social guests, it owes the highest duty of care to its invitees.
 
An invitee is someone on-site by permission and there for the commercial benefit of the facility. That typically includes, for example, store customers, contractors on-site to do repairs and vendors on-site to do business. For such invitees, a facility owes a duty: (1) to maintain the premises in a reasonably safe condition; (2) to warn invitees of dangers they know of, should know of or have created; and (3) to conduct reasonable inspections of the premises to discover possible dangerous conditions. Centered on a review of other communicable disease cases, including premises claims based on Legionnaire’s Disease, COVID-19 plaintiffs will likely allege that a facility owed its invitees the following duties: (1) to take action to prevent an outbreak or stem the spread of the disease on-site; (2) to take action to avoid exposing those on-site to the virus; and (3) to warn those coming on-site of any known or reasonably discoverable outbreaks or contaminations at the facility. See 2 Premises Liability 3d Section 38:1, 38.3 and 38.4 (2019 Ed.).
 
What constitutes sufficient action by a facility to avoid liability for a premises claim is currently not clear. Courts, however, will likely look at applicable federal, state and local government COVID-19 regulations and the guidance published by the CDC and other agencies to determine whether a facility did enough to protect its invitees. That includes, but may not be limited to, the cleaning and sanitizing, social distancing, hygiene and other practices recommended by the CDC, see the recommendations here and here. It will also likely include OSHA’s Guidance on Preparing Workplaces for COVID-19 and Gov. Whitmer’s stay at home orders, specifying what facilities may stay open and the COVID-19 precautions those facilities must take to operate. The preventative actions required by the Governor’s orders and recommended in the above guidelines will largely define what COVID-19 measures are expected of a Michigan-based facility.
 
Steps to Mitigate COVID-19 Premises Liability Risk
 
The following practices can limit a facility’s risk of being liable for a premises liability claim.
 
  • Develop COVID-19 protocols that comply with the Governor’s orders and the CDC guidelines and identify a point person at your facility to implement the plan and to stay on top of any changes to these frequently changing directives.
  • Train employees on how to implement any COVID-19 protocols adopted by your facility and about the social distancing, hygiene and other practices recommended by the CDC.
  • Consider having invitees at your facility sign a liability waiver as a condition to entering the premises. Such a waiver may include, among other things, an acknowledgement of the COVID-19 precautions your facility is taking, a warning that such measures do not eliminate all risks associated with COVID-19 and the invitee’s agreement to assume COVID-19-related risks as a condition of entry onto the premises.
  • Temporarily shut down any part of your facility infected by the virus. Recent studies show that the virus survives on plastic and stainless steel for three days, cardboard for one day and copper for four hours. It may be prudent to shut down the infected part of your facility consistent with these timelines.
  • Take environmental samples of the virus (if possible) from any contaminated surface at your facility before cleaning and sanitizing the area. Preserving this sample under proper conditions may help you prove that a contamination at your facility did not infect a particular claimant.
  • Keep and preserve detailed records of the preventative measures taken, including when, how and why your facility implemented such measures; as well as detailed records pertaining to any COVID-19 contamination on-site and the measures taken to address that contamination.
  • Notify your insurance carrier of any claim that an outbreak at your facility caused someone to contract COVID-19 – as you may have coverage for the claim.
  • Review your contracts with any business vendors or contractors frequently on-site and make sure to allocate responsibility for premises liability appropriately.
 
Some business and government leaders are pushing for liability protections for companies in the next COVID-19 relief legislation. A recent New York Times article titled “Businesses Seek Sweeping Shield From Pandemic Liability Before They Reopen” addresses this topic. But, how broad these protections could be – if any are included in the next relief package – is unclear. You must therefore take your own steps to limit your facility’s potential exposure.
 
For questions or concerns regarding premises liability, please contact Lance Zoerhof at lzoerhof@wnj.com or your Warner attorney.
 

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