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.