Owner/operators should know what their tenants are doing
Rob Olson is senior counsel in San Diego with Tyson & Mendes, a litigation firm that specializes in insurance defense. He said:
"The first question in evaluating a lawsuit over COVID exposure: Where did the plaintiff allege they were exposed? 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.
Nevertheless, proving the 'where' will be the hurdle for the plaintiff. The plaintiff must show with a degree of certainty that they contracted COVID-19 from the property owner in a common area -- not from their employer, or dinner with parents or friends, or at a restaurant, etc. So far, no case law defines what is needed for this degree of certainty.
A landlord/property owner can protect themselves by instituting controls that protect individuals (including invitees, licensees, and even trespassers) against the spread of COVID-19 in their property's 'common areas,' including lobbies, elevators, elevator banks, hallways, swimming pool, laundry area, playgrounds, exercise rooms, dog areas, smoking areas, etc.
These controls should be based on the current known science proffered by the local and federal guidelines (whether they agree with them or not), and can include posting signs, requiring masks, increasing ventilation and airflow, limiting occupancy in an area, providing spacing cues on floors, and prohibiting unnecessary areas (swimming pools and workout areas). Of course, if these practices are not documented, then in a courtroom, they do not exist.
Landlords should not have to police their policies actively -- but likewise, they cannot ignore people who violate the property owner's guidelines. Tenants also have an obligation and responsibility to keep the unit safe, sanitary, and maintain it. This should also mean the tenants must reasonably comply with state and federal policies -- it will help the landlord if they notify their tenants of their respective responsibilities with COVID and document it accordingly."