legal notes T R A N S L AT I N G T H E L A W F O R Y O U
{legal Realtor ®}
Staying Safe From Liability During the Pandemic BY STEPHEN M. PERRY, ESQ ., Casner & Edwards, LLP Real estate brokers have always known that the services they provide are “essential,” but it was gratifying that the Commonwealth of Massachusetts agreed with this assessment when most other businesses were shuttered due to the coronavirus pandemic. A frequent question among businesses that are now reopening, as well as those that have been open all along, is whether there are significant liability risks associated with operating during the pandemic. Will a business be liable if an employee becomes sick?
What about a customer who blames the business for contracting the virus? Should companies require that employees, contractors or customers sign waiver forms to ward off liability? In looking at these issues, it is helpful to understand what possible liability claims a business might theoretically face in connection with COVID-19. Under the common law of negligence, every individual and every business owe a duty of reasonable care not to cause injury to another person. This would potentially include a duty not to negligently expose another person to a serious, contagious illness. For example, during the AIDS epidemic there were cases in which those stricken with the disease sued sexual partners who knew or should have known that they were HIV-positive but did not disclose it. In the context of COVID-19, the potential claim would be that the business or its agents failed in some respect to take reasonable precautions to prevent the spread of the disease, and that as a result of this negligence, the plaintiff became seriously ill or died. 10
Bay State REALTOR®
Class action lawyers are already soliciting clients for personal injury, and wrongful death claims against nursing homes and cruise ships where COVID-19 outbreaks have occurred. It is easy to see how the family of a nursing home resident or a cruise passenger might blame the business for the death of their loved one. There is always some extra precaution that allegedly should have been taken, especially with the benefit of hindsight. Furthermore, in the nursing home and cruise ship contexts, proving the causation element – that the resident contracted the disease at the nursing home or on the cruise ship – is relatively easy. But what about in the real estate brokerage context? How likely is it that someone who contracted the virus and became seriously ill will be able to trace it back to the brokerage business, and, more specifically, to a negligent act or omission on the part of the broker or its agents? In general, those who seek to blame their sickness on a real estate brokerage firm are likely to have a difficult time proving
that they contracted the illness specifically due to negligent acts or omissions of the brokerage or its agents, rather than elsewhere in the community. If we assume that the broker and its workforce are taking the usual precautions by staying home when sick, wearing masks during close encounters and while indoors, and following the other recommended safety precautions, how will the plaintiff prove both that the broker acted negligently and that the ill or deceased person caught the disease as a result of that negligence? The person may have contracted COVID-19 while at the grocery store or filling up the gas tank or getting a haircut, or talking to a neighbor. Getting sick in the community is not like getting sick on a cruise or at a nursing home. There is a lot of contact tracing occurring, so it is theoretically possible that an outbreak of several people could be traced back to an open house. It is entirely possible that one or more customers who became ill might learn that an agent they worked with had tested positive. In these situations, there shouldn’t be liability on the part of
