Client Alert: Premises Liability in a Pandemic—Be Reasonable and Take Precautions

Ohio’s Stay at Home Order has been amended to extend through May 1, 2020. Now is a good time for businesses to review their safety precautions and protocols to ensure they remain compliant with the Order. This is necessary for businesses not only to minimize exposure to COVID-19 and potential liability to the State for violating the Order, but also to minimize exposure to potential liability to others for maintaining unsafe premises.
  

Although businesses are not required to guarantee their customers’ or other business visitors’ safety, they always have a duty to exercise ordinary care to maintain their premises in a reasonably safe condition. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203, 480 N.E.2d 474 (1985). Ordinary care is reasonable care; and what is reasonable depends on the circumstances. But if a business fails to abide by that duty, it may become liable for any harm that its customers or other business visitors suffer because of the unsafe condition. An exception to this rule is when there are dangers that are either known to such invitees or are so open and obvious that the invitees may reasonably be expected to discover them and protect themselves against them. Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph one of the syllabus.
 

So, in a coronavirus pandemic, what constitutes “ordinary care”? Ultimately, it may depend on the medical science related to the virus and government standards set forth in duly issued statements, recommendations, and orders. The first and best place to look for guidance, therefore, is Ohio’s Stay at Home Order itself, as amended, which provides that businesses still permitted to operate nevertheless “must take proactive measures to ensure compliance with Social Distancing Requirements, including where possible:
 

i. Designate six-foot distances. Designating with signage, tape, or by other means six-foot spacing for employees and customers in line to maintain appropriate distance;
 

ii. Hand sanitizer and sanitizing products. Having hand sanitizer and sanitizing products readily available for employees and customers;
 

iii. Separate operating hours for vulnerable populations. Implementing separate operating hours for elderly and vulnerable customers; and
 

iv. Online and remote access. Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely.”

This is a non-exhaustive list of proactive measures, and some of them may not be applicable to your business or operations. The intent of the Order, however, “is to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent possible.” Taking proactive measures consistent with the Order—whatever they may be—will be the best evidence of ordinary care to keep your premises reasonably safe. Conversely, failing to take proactive measures, or facilitating activity on your premises that contravenes the Order’s Social Distancing Requirements, may expose you to liability. Consider taking the following steps to identify what proactive measures are appropriate for you:
 

1. Read Ohio’s Stay at Home Order, as amended, which can be found HERE or HERE.

 

2. Be thoughtful about how you can effectuate the Order’s Social Distancing Requirements in your business operations to keep everyone who may set foot on your premises as safe as reasonably possible under the circumstances. This may include implementing the examples set forth in the Order or a variation of them.

 

3. Document your efforts to develop and implement strategies for maintaining your premises in as safe a condition as reasonably possible under the circumstances.

 

4. Appropriately communicate whatever strategies you decide on with all of your stakeholders—including employees, customers, and business partners—to promote shared expectations and ensure that your strategies are implemented consistently.

Taking these basic steps will minimize your risk of exposure to any claims of liability, including for failing to maintain a reasonably safe premises. And always know that if you have any doubts or questions, Brouse is here to help.