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ICSC Connect Virtual Series: COVID-19 liability for shopping center owners

May 27, 2020

The best strategy to avoid COVID-19-related liability lawsuits is to avoid being negligent, attorney Adam Rosenthal advised landlords, retailers and other business owners on the ICSC Connect Virtual Series episode Health and Safety Legal Considerations for COVID-19. A labor and employment partner in Sheppard Mullin’s San Diego and Los Angeles offices, he spends his free time trawling plaintiff attorneys’ blogs to stay ahead of their latest legal strategies. He said it helps his clients avoid giving visitors grounds for a lawsuit.

Collaboration between landlords, tenants and other stakeholders is crucial. “Appoint a COVID-19 czar to be responsible for managing information and coordinating responses across various business units,” Rosenthal said. Companies also should create working groups to plan pandemic-related practices, such as handling a shopper who doesn’t want to wear a face mask, so all stakeholders are on the same page by the time the problem arises.

Rosenthal offered his professional advice on four COVID-19-related questions from shopping center landlords.

1. If a landlord gives COVID-19 safety advice to a tenant or vendor, is the landlord assuming liability in the event the tenant or vendor gets sued?

No, Rosenthal said. “We’re in the midst of a pandemic, so when it comes to sharing advice and best practices, there’s a strong argument to be made that no, they’re not assuming liability.” Landlords can have a tenant sign an agreement that the landlord can share best practices but that the tenant ultimately is responsible for any safety measures, he added. “The plaintiff’s lawyers are going to sue everyone under the sun—they’re going to sue the cleaning company, they’re going to sue the manufacturer of the ventilating system—so the risk of not collaborating is much greater than the risk of collaborating.”

2. Can a shopper prove that an unsafe condition caused him or her to become infected?

“It’s going to be very difficult, currently,” Rosenthal said. However, as contact tracing technology ramps up, more visitors might be able to show proof that they were at locations where employee-driven outbreaks occurred. “Landlords and retailers need a national immunity law for businesses so that companies fully engage in contact tracing for the general good without fear that they’re going to get hit with a lawsuit,” he said.

3. How should an employer handle the situation if one employee complains about another employee not wearing a face mask?

“An employee must have a legitimate medical or religious concern to not wear a face mask,” Rosenthal said. “Say, ‘We can’t get into the details of why he isn’t wearing a mask, but trust us that we’re doing everything to ensure he is symptom free and taking precautions because he can’t wear a face mask,’” Rosenthal said. The employer should try to have the employee who can't wear a mask telework or relocate him or her to a low-traffic spot in the office or store, he added.

4. Can a company have employees, shoppers or vendors sign waivers saying they won’t hold the landlord or retailer responsible if they become infected?

Waivers are unenforceable for employees due to workers’ compensation laws. For nonemployees? You can, Rosenthal said, but you probably shouldn’t. “Does it make sense? It may mitigate some liability risks, but will it drive more people away from your business?” A shopping center could draft a waiver that requires third-party vendors like cleaning services to ensure their employees won’t sue. The most workable waiver would be an agreement to comply with a property’s posted safety policies. “Whether that’s an old-fashioned sign-up sheet or an app where visitors can confirm compliance via smartphone, there are several ways to warn and prevent contributory negligence claims,” Rosenthal said.

The full ICSC Connect Virtual Series episode is available here (Chrome works best).

Click to read about and listen to other recent Virtual Series episodes from ICSC

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Kimco’s Conor Flynn talks reopening timelines

Tips for leasing to medical users

Full ICSC Connect Virtual Series library

By Brannon Boswell

Executive Editor, Commerce + Communities Today

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