With
the number of individuals positively diagnosed
with the Ebola virus disease on the rise in the United States, commercial landlords
are understandably concerned about their responsibilities and their potential
liability to tenants, invitees and employees.
Common questions include the following: Could a person that contracts
the disease at the landlord’s property sue the landlord for damages? Could the landlord be forced to tear down its
property if the disease is spread on site, as was the case for the Reston
facility described in The Hot Zone: A
Terrifying True Story (the best-selling 1994 non-fiction thriller by
Richard Preston)?
This
article attempts to provide commercial landlords with some basic guidance for
Ebola-related matters. Past crisis situations
such as the 9/11 attacks and outbreaks of legionnaire’s disease are instructive
to landlords.
What action should a landlord take
now to reduce potential liability to tenants?
First,
contact
your insurance carrier. Determine if your existing policy provides coverage
for the decontamination, loss of income and potential liability to tenants in
the event property is closed for a period of time as a result of a possible Ebola
contamination. Some policies exempt claims caused by or related to Ebola. Here is a link to an article that discusses concerns
a landlord may want to raise with its own insurance carrier:
Second,
you should review your general emergency preparedness plan with your
property manager. If you do not have an
emergency preparedness plan, you should consider adopting one. The plan need not (and should not) specifically
address Ebola disease; but rather, should generally address how the property
manager should respond in the event of an emergency with respect to notification
of tenants and evacuation of the property.
Unlike
mold, radon or pest controls, there is no reasonable method by which the
landlord can prevent a person infected with Ebola from entering the Premises. There are no laws or regulations requiring
landlords to take action with respect to Ebola disease. Accordingly, the
landlord should not assume any responsibility in that regard, as it could only
increase the landlord’s potential liability should Ebola disease be transmitted
on the landlord’s property.
The
New Jersey case of Vellucci v. Allstate
Insurance Company, New Jersey, Appellate Division, May 23, 2013, is
instructive for how a court would probably treat a landlord in an Ebola
case. In that case, the plaintiff
contracted Legionnaire’s disease from the water in the men’s bathroom and later
died. In the suit against the landlord,
the court found that the landlord “did not test the water for contaminants”
until after the plaintiff contracted the disease. The plaintiff argued that the landlord had an
affirmative duty to test the water at the premises. The trial court disagreed and dismissed the
plaintiff’s claim, which dismissal was confirmed on appeal. The N.J. Court of
Appeals stated in its ruling that “Plaintiff did not present any rational basis
to impose a duty on [the landlord] to foresee the advent of the Legionella bacteria in the building’s
water system. There is no statutory or regulatory scheme imposing a duty on
owners and managers of commercial office building to take affirmative action to
detect the presence of Legionella.” And, it further stated that “[t]here are no
industry standards that require [the landlord] to have done anything more than
what it did in response to the salient facts of this case. Once relevant
information concerning decedent’s illness was brought to its attention, [the landlord]
took appropriate measures to investigate the matter and ascertain what needed
to be done to prevent a recurrence.”
(Also see Flaherty v. Legum &
Norman Realty, 2007 U.S. District Court for the Eastern District of
Virginia – wrongful death suit by occupant who died of legionnaire’s disease
was dismissed by the court for plaintiff’s inability to prove standard of care
required by property management company)
We
can expect that, if an individual is diagnosed with Ebola disease and exposes
the property and the tenants to potential risk, the government authorities will
inform the landlord of the situation. Only then will the landlord have a duty
to take effective action as discussed below.
Here
is a link to an Ebola Crisis Communication Plan: http://www.aon.com/ebola-response/attachments/Ebola-Communication_Checklist.pdf
Are there actions that a landlord
should take to lessen potential liability to its own employees?
A
landlord, like any employer, should avoid providing medical advice to an
employee. Landlords should encourage but
not demand that its employees speak with their own doctors about their questions
and concerns. Landlord can also refer
employees to the Center for Disease Control (CDC) information page on Ebola (http://www.cdc.gov/vhf/ebola/).
In most cases, if an
employee is infected with Ebola disease, the employee will be covered by health
insurance and worker’s compensation insurance. The landlord’s principal
concern may actually be protecting the confidentiality of the employee’s
medical records, which duty may conflict with the landlord’s obligation to
protect other employees and the occupants of the property. The medical facility that diagnoses the disease will undoubtedly report
the finding to the CDC, and the government may determine what should be done
with respect to the employee and the property.
If a person with Ebola disease did
enter the property, what should the landlord do?
If someone
diagnosed with Ebola enters a building, the landlord should immediately contact
the Centers for Disease Control, the local Department of Public Health, its
lawyer and its insurance carrier. We
know that in Texas the local government disinfected the residential premises of
the infected individual and paid for the operation. In New York, the bowling
alley visited by an infected doctor was shut down for a period of time.
Closing
the building raises some tricky legal issues.
On the one hand, keeping the building open leaves the landlord
vulnerable to a lawsuit if someone who enters the property does in fact
contract Ebola disease. On the other hand, closing the building could render
the landlord responsible for the loss of business incurred by tenants who are
forced to close. Although decisions will have to be made on a case-by-case
basis depending on the particular circumstances in consultation with the
landlord’s lawyers, the landlord should probably not close the building absent instructions
from the federal, state or local authorities that the building must be closed. Landlords should review their standard leases
to determine if there is a waiver of liability under these circumstances.
Conclusion
Although
it is counterintuitive and contrary to the “must do something” nature of most
property owners and managers, from a liability perspective, it is probably best
to take no preemptive action with respect to Ebola. Historically, courts have been reluctant to
hold property owners responsible for third-party activities on their properties
unless the landlord has clear notice of imminent danger. In the event that the property is visited by
an individual with the Ebola disease, the landlord should notify the
governmental authorities and follow their instructions in consultation with
their lawyers.
