Commercial landlords all over the country are currently attempting to navigate the complicated waters of reopening during the COVID-19 pandemic. This is a difficult process, as there often seem to be different requirements for each state, county, and even city. In particular, the question of potential liability to customers seems to be of utmost importance. I recently reviewed this question from the perspective of an Ohio landlord and that lens should be kept in mind while reading this series of blogs. However, there are some commonalities across the board that should be helpful to any landlord looking for any guidance available.
The reason this question of potential liability is so important is because any likely lawsuit from a consumer against a landlord for contracting COVID-19 while visiting a shopping center will likely be based on a claim of negligence. Under Ohio law, a landlord has a duty to its consumers to exercise ordinary care to maintain its premises in a reasonably safe condition and to warn invitees of known, latent, or hidden dangers. However, a landlord only has to do this in the common areas of the shopping center where it has actual control over the areas. Within a tenant’s leased premises, that duty falls on the tenant. In the event a negligence claim is brought against a landlord, the landlord can use the affirmative defense of comparative negligence. What this means is that, because of the widespread awareness of COVID-19, and the widely recognized means and methods that can be used to protect yourself from it, if consumers do not follow proper announced guidelines, a portion of their damages would be deemed to have resulted from their own actions. It is arguable that simply going outside invites danger from COVID-19, and individuals are knowingly taking on that risk whenever they do so. To protect itself, a landlord should comply with all governmental and industry guidelines, make sure its contractors are doing the same, post warnings, and check with its insurance carrier to make sure it is covered by commercial general liability insurance.
The following blog posts will take a closer look at the Ohio law on negligence, the duty of a landlord to a consumer, and the affirmative defense of comparative negligence, provide some recommendations for mitigating liability, and examine upcoming relevant legislation, starting with a review of negligence claims.