Alex ConnThanks for joining us for part three of our blog on potential liability for landlords reopening shopping centers in Ohio. In this part three, we are going to make some recommendations to landlords on how to try to best protect themselves.

At minimum, landlords should (a) closely follow CDC guidelines for commercial establishments, as well as (b) post warnings at all entrances to the shopping center detailing (1) the measures the business has taken to prevent the spread of the virus, (2) that customers are responsible for abiding by any rules or guidelines the shopping center has put in place for everyone’s protection, (3) that these measures do not guarantee a person will not contract the virus while at the shopping center, and (4) that customers enter at their own risk. The CDC guidelines are as follows (note that not all of these guidelines are strictly applicable to common areas of enclosed malls or open air centers, but provide instructive guidance as to how those areas should be managed):

Practice good hygiene

  • Stop handshaking – use other noncontact methods of greeting
  • Clean hands at the door, and schedule regular hand washing reminders by email
  • Promote tap and pay to limit handling of cash
  • Disinfect surfaces like doorknobs, tables, desks, and handrails regularly
  • Increase ventilation by opening windows or adjusting air conditioning

Avoid crowding

  • Use booking and scheduling to stagger customer flow
  • Use online transactions where possible
  • Consider limiting attendance at larger gatherings

There are also the following resources offered by the CDC for posting information at the property, in addition to the landlord’s own postings:

In addition, landlords should look to the International Council of Shopping Centers or other industry guidelines, such as those found here.

What is not certain right now is just how far a landlord needs to go to fulfill its duty to an invitee. This question will likely be answered by the courts as cases arise and the courts review the actions a landlord took to protect its invitees. The best recommendation at this time is to comply with all governmental and industry guidelines and to do whatever a landlord feels like it can do competently. Competency is key here, as it is easy to imagine that a landlord could actually increase its liability if it takes on something and performs negligently in executing that task. This extends to the landlord’s contractors, such as security and cleaning. The landlord must make sure that it is setting expectations and that the landlord’s contractors are performing as expected.

Perhaps most important of all, a landlord should check with its insurance carrier for the carrier’s expectation of what a landlord needs to do in order to be covered under its commercial general liability insurance. These policies should, but may not always, cover a claim from an invitee who is claiming harm from a landlord failing to exercise reasonable care in implementing, enforcing, or warning of the risk of potential exposure to the coronavirus.

We hope these recommendations have been helpful. In our next blog, we are going to take a look at a proposed COVID-19 related legislation that is traveling through the Ohio general assembly.