Reed Smith Client Alerts

As COVID-19 cases continue to rise, commercial landlords and tenants with publicly accessible spaces face an ongoing challenge to reopen safely and mitigate risk of exposure to the public. What are the risks if a landlord fails to take appropriate action – or even in the preventative measures a landlord undertakes? While landlords in general are not liable for harms on premises not under their possession or control, they should be aware of responsibilities reserved to them under their leases and should ensure thoughtful implementation of any COVID-19 policies.

Authors: Dusty Elias Kirk Peter L. Kogan Nicole D. Prieto

Bookshelves in the library with old books

On May 1, 2020, Pennsylvania Governor Tom Wolf announced the first counties set to shift from red phase to yellow phase as part of the plan to reopen social and business activity in the Commonwealth – with all counties in the green phase as of July 3, 2020. As states nationwide commence reactivation of their economies, public-facing businesses face challenges in protecting their employees and customers.

The scale of the social and economic impact of COVID-19 presents commercial landlords with difficult questions: What is their liability if their tenants’ invitees can trace infection to their leased premises? What are the risks when landlords take proactive infection mitigation measures in lieu of their tenants?

Premises Liability

Premises liability standards may provide some guidance if a commercial tenant’s customer or employee is infected and brings suit for injury. Generally, with exception, landlords are not liable for injuries caused to third parties on leased premises they do not maintain or control. They should be aware, however, of cleaning or maintenance responsibilities reserved under their leases that may impose an expectation for them to enhance sanitization efforts in transferred premises.

In Jones v. Levin, 940 A.2d 451 (Pa. Super. Ct. 2007), an employee slipped on ice in a store parking lot and filed a negligence suit against the administrator of the estate that owned the property, which was under a month-to-month lease. The Pennsylvania Superior Court reiterated the general rule that an out-of-possession landlord is not liable for third-party injuries, unless, for example, it had control over the defective area. The court held that there were genuine issues of material fact regarding the landlord’s control and whether there was a true landlord-tenant relationship at the time of the injury; the lease required the landlord’s consent before the tenant could make structural repairs. The court further addressed the concept of a “public use” exception: namely, if the leased premises is open to the general public, an out-of-possession landlord may be liable for failing to inspect or repair dangerous conditions before transferring possession to the tenant. Following New York law, the Superior Court held that the exception could apply to employees harmed in areas the public could access.