What Constitutes “Reasonable Care” by Premise and Business Owners in Light of the Coronavirus Pandemic?

May 4, 2020Article

As stay-at-home orders lift, the Coronavirus pandemic will continue to impact owners and operators of businesses. The Coronavirus has changed what was once considered a simple trip to the grocery store into a well developed plan on how to avoid contracting the virus. Many business owners are struggling with how to maintain a profitable business while preventing the spread of COVID-19 to their customers. So as a business owner, you might be wondering, “Am I responsible for keeping my customers safe?” Business owners should take caution to act reasonably because, although the virus is novel, it is still rampant in many states, and the public expects a certain level of safety[1] when visiting businesses in the community.

Premise Owners Owe a Duty of Reasonable Care

Most jurisdictions have established that a premise owner owes those who enter the premise for business purposes a duty to protect against hazards that are not “open and obvious” on the premises. If a premise owner has knowledge of the hazard and a customer, despite exercising ordinary care, lacks such knowledge, a customer can recover in most jurisdictions. In fact, the greater the danger, the greater the duty a premise owner has to protect its customers and clients.[2] However, the cornerstone of any premise liability action is whether a premise owner acted reasonably upon learning of a hazard.[3]

What is “Reasonable” When it Comes to Novel Coronavirus?

Some jurisdictions would describe a hazard such as a virus a latent hazard. Many courts have held that a latent defect is one that cannot be discovered by an inspection.[4] The presence of the Coronavirus is not easily detectable and arguably cannot be discovered by inspection. In some jurisdictions, the lack of knowledge of the dangerous condition is not a defense, and because the owner has an affirmative duty to exercise ordinary care to keep the premise in a reasonably safe condition, the owner must inspect the premise or take other proper means to ascertain its condition.[5] At its crux, the law tells us that a premise owner should act reasonably in order to prevent the worst case scenario. Even with less obvious hazards, such as a virus, there are circumstances in which the law requires that premise owners warn invitees and take steps to prevent the spread of the virus.

Many plaintiffs will argue that a premise owner could reasonably anticipate that its customers may be infected with Coronavirus because, although not much is known about the novel virus, we know that it is easily spread. Premise owners must take reasonable steps now to prevent the spread of Coronavirus even when they do not suspect exposure. Additional scrutiny is required upon learning an infected person has visited the premise.

If a premise owner knows or has reason to know of a customer or an employee on the premise who is infected with COVID-19, there may be a duty to warn other customers or employees or to take further action.[6] For example, if the building ventilation system or washroom facilities become contaminated with the virus, a premise owner may have an obligation to prevent the spread of the virus through enhanced sanitation or mechanical measures. Premise owners may have a duty to restrict access to certain areas of the facility, or even worse, close their business. These actions will be scrutinized during the course of litigation to determine whether a premise owner has satisfied its obligations to those on its premise.

The Courts’ decisions about what actions are considered reasonable to prevent the spread of illness vary significantly. Some courts have determined that disinfecting the premise is reasonable in certain circumstances.[7] In other situations, proof of adherence to CDC guidelines has been considered reasonable.[8] However, not all steps that one might find reasonable will be considered enough by some courts.[9]

What Can You Do?

There are reasonable steps that premise and business owners can take to prevent the spread of a virus to their customers. Premise owners should consider actions such as the following:

  • Implement written procedures for use in preventing the spread of COVID-19;[10]
  • Increase the frequency of cleaning and sanitizing of surfaces;
  • Facilitate social distancing by directing customers to maintain a distance of six-feet from others through the use of floor markings or some other means;
  • Automate doors, elevators, sinks, and soap dispensers;
  • Place flyers regarding CDC handwashing recommendations in areas that are visible to both customers and employees;
  • Provide dispensers containing hand sanitizer in common areas;
  • Inform visitors of the presence of an infected person on the premises;
  • Change floor plans, with distancing and safety in mind, to include more offices, private spaces, and barriers rather than open concept floorplans to avoid contact with others (“de-densifying”);
  • Install higher quality air filtration systems; and
  • Limit the number of people on the premises.

The key takeaway is that premise and business owners have a responsibility to become educated about pandemics and determine a proper response plan. They should consider consulting with a lawyer or an expert in health and safety to create a response plan that reasonably protects those who enter the premise during and after the pandemic.

Authors: Mirna J. Scheffy (Partner, San Francisco), Jenna Melton Fowler (Associate, Atlanta) Editor: S. Christopher Collier (Senior Partner, Atlanta)

Hawkins Parnell & Young's national litigation team is helping businesses across the United States navigate unprecedented legal challenges arising from the COVID-19 pandemic. Visit our COVID-19 Resource Center for the latest insights and guidance.

[1] A Florida court found that a laboratory that manufactures, grows, tests, or handles ultra-hazardous materials owed a duty of reasonable care to members of the general public to avoid an unauthorized interception and dissemination of the materials when an unknown individual mailed anthrax that caused the death of a member of the public. United States v. Stevens, 994 So. 2d 1062 (Fla. 2008). The Court did not address causation, but clearly stated that an allegation against the laboratory was “sufficient to open the courthouse doors.”

[2] Bodenheimer v. S. Bell Tel. & Tel. Co., 209 Ga. App. 248, 433 S.E.2d 75 (1993).

[3] “The question of negligence must be determined according to what should reasonably have been anticipated, in the exercise of ordinary care, as likely to happen.” Swanson v. Choate, 108 Ga. App. 152, 153, 132 S.E.2d 246, 248 (1963); See also, Rowland v. Christian (1968) 69 Cal.2d 108, 119 (superseded by statute on a different issue).

[4] Johnson v. Green Growth 1, LLC, 305 Ga. App. 134, 699 S.E.2d 109 (2010); Preston v. Goldman (1986) 42 Cal.3d 108, 123; Wagner v. State of California (1978) 86 Cal.App.3d 922, 927.

[5] Delon Hampton & Associates, Chartered v. Superior Court, 227 Cal. App. 4th 250, 255, 173 Cal. Rptr. 3d 407, 411, 2014 Cal. App. LEXIS 545, *5, 2014 WL 2810192.

[6] In Texas, courts have found that an employer who knew of an employee's infectious disease and agreed to quarantine the employee has a duty of ordinary care to prevent the employee from communicating the disease to other persons. Mo., K. & T. R. Co. v. Wood, 95 Tex. 223, 66 S.W. 449 (1902).

[7] In Alabama, courts have found that a lessor acted reasonably when the lessor disinfected the premises upon learning that a prior lessee with Scarlet Fever occupied the premise. Finney v. Steele, 148 Ala. 197, 41 So. 976 (1906).

[8] In Florida, courts have found that cruise ships do not have a duty to prevent the outbreak of Norovirus when there is evidence of food safety and sanitary practices that adhere to FDA guidelines, and hand washing guidelines promulgated by CDC such as rubbing hands together with soap and water prior to preparing food. Davis v. Cruise Operator, Inc., No. 16-cv-62391, 2017 U.S. Dist. LEXIS 111860 (S.D. Fla. July 18, 2017).

[9] In Virginia, courts have found that it was an issue of fact as to whether a sheriff acted reasonably when she argued that she acted appropriately by bringing an overcrowding problem to the attention of city officials when a jail inmate contracted meningitis in a jail. The sheriff had run an overcrowded, poorly ventilated, and unsanitary jail despite knowing that an overcrowded jail would spread contagious diseases. Brown v. Mitchell, 327 F. Supp. 2d 615 (E.D. Va. 2004). Although the court was examining the sheriff’s actions under gross negligence, the case still provides guidance on what is reasonable in certain circumstances.

[10] However, exercise caution when doing so because in some jurisdictions, such as Arizona, courts have found that when a premise owner implements procedures to prevent the spread of bacteria, and then does not follow its own procedures, it is a failure to exercise due care. See Sudbeck v. Sunstone Hotel Props., No. 2:04-cv-1535 JWS, 2006 U.S. Dist. LEXIS 110734 (D. Ariz. Aug. 23, 2006).