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ecause of the coronavirus pandemic, premises liability and wrongful death lawsuits have been popping up around the country where workers are suing their employer for exposure to COVID-19. But can landlords who own commercial properties where employees were exposed be held liable?
The quick, short answer — maybe. There is still much precedent yet to be set on this particular situation. In a recent article, Millionacres asked landlord liability experts for their advice and recommendations for investors and landlords. Here are a few takeaways for lessees and employees.
One expert reportedly told the publication as follows: “The extent of responsibility for injuries occurring on a property during a commercial lease depends upon the extent to which the owner of the property maintains control over the property, which is alleged to have been the cause of injuries suffered.”
He explained that though a property owner or landlord won’t be responsible for injuries caused solely by the tenant’s operations and activities on leased premises, the property owner may still be liable to the public where the landlord has responsibility or maintenance, inspection, or oversight under the terms of the lease.
In California, all property owners, including owners of private and government property have a legal duty to keep their premises safe. However, determining who’s at fault in a premises liability case is complex. Premises liability lawsuits require an injured individual to prove that they were harmed because of a property owner/manager’s negligence.
Joint responsibility or control over the premises does not relieve a landlord from responsibility to maintain the premises in a reasonably safe condition. Maintaining the property in safe condition in the context of COVID-19 includes ensuring that there is plexiglass and that customers/visitors are socially distanced and wearing masks. The expert continued, “if landlords don’t follow that established standard of care and someone gets hurt, the landlord could be responsible for the harm.”
Another California-based expert recommended asking or requiring to sign a COVID-19 waiver, saying that they should be upheld unless an operator commits gross negligence, for example, knowingly exposing tenants to the virus. However, as we reported in Ana Aguilar’s case, the preschool teacher at a Montessori school in Irvine who was fired after refusing to sign a form agreeing not to sue the school if she caught COVID-19 or suffered any injury from it while working there, the agreements are illegal and unfair to workers.
In 2019, the State Legislature passed AB-51, prohibiting California employers from requiring prospective and current employees to “waive any right, forum, or procedure” for a violation of the California Fair Employment and Housing Act (FEHA) or the California Labor Code. These COVID liability waivers likely would be held unenforceable by courts because of the unequal bargaining power between employers and employees, lawyers who represent employers say.
A third expert stresses the importance of knowing exactly where the plaintiff alleges they were exposed to the virus. He reportedly explained, “If it was at work, in a tenant’s office space, then it is outside the property owners’ control. But if the plaintiff alleges that they were exposed in a common area, then the property owner may not easily get out of the lawsuit.”
It is the plaintiff’s responsibility to prove that the defendant’s negligence was the primary factor that caused their injuries and that the defendant acted negligently regarding use or maintenance of the property. Moreover, in this case, the plaintiff would have to show with a degree of certainty that they contracted COVID-19 from the property owner in a common area and not elsewhere. Common areas can include lobbies, elevators, elevator banks, hallways, swimming pools, laundry areas, playgrounds, exercise rooms, dog areas, and smoking areas, to name a few.
As Millionacres wrote in their article, “As a CRE landlord, you’re likely only liable for what you have direct control over. If you follow best practices and CDC guidance about cleaning, for instance, if that’s within your purview, you should be fine.” This is why the responsibility of proving negligence is on the victim. Following CDC guidelines is the standard, so if landlords don’t follow that established standard of care and someone gets hurt, the landlord could be responsible for the harm.