While many legal alerts have provided the sound advice to set protocols and encourage tenants to report instances of the infection to management so that precautionary measures may be taken, it is important not to overlook centuries of common law defining an infected individual’s own duty to warn and protect neighbors from a known contagion. As far back as the 1800’s, courts around the country were imposing duties upon those infected with smallpox to warn others with whom they came into contact. A more recent line of case law emerged with respect to the duty of an HIV-infected individual to warn those with whom he or she came into intimate physical contact. Suffice it to say, it is a fairly settled principal that those with highly infectious diseases have at least some duty to warn others and employ reasonable measures to diminish the chances of transmission.
This does not immunize property operators or managers from responsibility. Courts have historically imposed similar duties upon owners and operators of real estate holdings when they are aware that infected guests or residents have visited or are residing in the premises. As the Supreme Court of Iowa explained more than a hundred years ago, a jury could reasonably find a hotel owner negligent if it has “knowledge of the prevalence of the disease in the hotel, kept it open for business and permitted plaintiff to become a guest without informing her of the presence of the disease.” Gilbert v. Hoffman, 23 N.W. 632 (Iowa 1885). “By keeping the hotel open for business, they in effect represented to all travelers that it was a reasonably safe place at which to stop…”. Id.
The situation is obviously different for multi-unit apartment buildings and condominiums. Shutting down is not an option. But before landlords or condo boards assume that the obligation to warn residents about instances of COVID-19 lies solely with management, take a moment to publish to your residents reminders of their own duties to one another. Consider producing a generic form that residents can simply post on their doors to inform neighbors that they are distancing or quarantining. If that makes residents uncomfortable, offer the opportunity to report instances of the virus to management so that management may make a generic announcement (without naming names – more to come on that later) and warn residents to take precautions while also indicating the safety measures being undertaken by management.
It’s natural to focus on management’s obligations amid this crisis. But I’d invite you to refocus. The best defense against the spread of this virus, and the optimal starting point for a legal analysis, begins with the obligations of those experiencing symptoms. It is imperative to communicate to residents that they each have a duty to every other resident in their buildings, and to offer them means of fulfilling their obligations in a way that respects their privacy but protects their neighbors, even as management implements its own emergency planning and response protocols.
Please note, on April 5, 2020, the Pennsylvania Secretary of Health issued an Order mandating enhanced cleaning and disinfecting requirements for owners of large buildings. The Cleaning Order applies to owners of buildings of at least 50,000 square feet used for commercial, industrial or other enterprises, including but not limited to facilities for warehouses, manufacturing, commercial offices, airports, grocery stores, universities, colleges, government, hotels, and residential buildings with at least 50 units.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Jordan Rand is a partner in the Litigation Department at Klehr Harrison.