Alex ConnThanks for joining us for part two of our blog on potential liability of landlords who are reopening shopping centers to consumers in Ohio. In this part two, we will do a deeper dive into the negligence standard in Ohio.

A plaintiff must establish three elements for a negligence claim: that (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached that duty of care; and (3) as a direct and proximate result of the defendant’s breach of the duty of care, the plaintiff suffered injury. When we talk about duty, we are referring to the relationship between the plaintiff and the defendant. To determine that relationship, we look to the Ohio definition of an “invitee,” which is a person who rightfully enters and remains on the premises of another at the express or implied invitation of the owner and for a purpose beneficial to the owner. In the case of a consumer at a shopping center, the consumer would be there because of the express or implied invitation of the landlord, as the landlord is holding out the shopping center as a place to visit and shop. In addition, the consumer is beneficial to the landlord, as there is no reason for a shopping center to exist and there would be no tenants without consumers coming to the shopping center.

So what duty does a landlord owe to its invitees? Good news here for landlords – it’s not too intense. A landlord just has the duty to exercise ordinary care to maintain its premises in a reasonably safe condition and to warn invitees of known latent or hidden dangers. However, it is key to note that duty does not extend to premises not in the possession and control of the business owner. This control typically involves the right and power to admit and exclude people from the premises.

Of particular relevance to a landlord, when a party other than the owner possesses a premises (such as a tenant leasing space in a shopping center), the tenant, and not the landlord, owes the applicable legal duty to the invitee. Thus, the tenant, and not the landlord, is liable for injuries occurring to a third person on or off the premises. In the case of a shopping center, this means that the landlord owes a duty to its invitees for the common areas only, as that is the part of the shopping center where a landlord has actual physical control. The tenants are responsible and liable to consumers in their separately demised spaces.

In regards to a landlord’s duty to warn, there is no obligation to warn if the danger is open and obvious. It is possible that the courts would decide that the knowledge of the danger of COVID-19 is so widespread that it would be open and obvious to an invitee. However, it is difficult to say with certainty, as typically this knowledge test revolves around something visual, not something invisible to the naked eye like COVID-19. As an example, Ohio has determined that there is no duty to warn an invitee of the dangers associated with natural accumulations of ice and snow. However, that carve-out from duty is limited in that it applies only to those who could observe and appreciate the danger. While it is certainly reasonable to expect an invitee to appreciate the danger of COVID-19, can an invitee really observe COVID-19? That might be a tough sell, but the general public’s knowledge and appreciation of the dangers of COVID-19 is very relevant to our discussion on negligence.

This is important because of a particular defense to negligence claims that will likely be of significant help in the event a negligence claim is brought against a landlord, that being comparative negligence. In 1980, Ohio adopted comparative negligence as its standard for evaluating and measuring negligence claims. This means that the law looks at the situation and assigns a proportion of blame to each party, and the parties share the cost of damages and losses according to their share of negligence. This “blame game” is determined by the jury or judge, depending on the type of trial. It is reasonable to assume that a judge or jury would assign a percentage of the blame from a consumer contracting COVID-19 from a visit to a shopping center to the consumer themselves. The public is very much aware of the dangers of COVID-19 due to the immense amount of news coverage in addition to its dominance of social media. Further, depending on what governmental restrictions or regulations are in place at the time the consumer contracted COVID-19, there might be “stay at home” orders or other relevant orders that the public knows about. A full or partial violation of those orders would increase the portion of tortious conduct assigned to the consumer who is out on a shopping trip.

We hope this look into negligence claims has been helpful. In our next blog, we are going to make some recommendations to landlords on how to try to best protect themselves against such claims.