Could Commercial Landlords be Liable for Exposure to COVID-19 Under New York Law?

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The ongoing COVID-19 pandemic raises the question of whether landlords having leased properties for commercial uses can be held liable for injuries sustained when someone—whether employees of the commercial tenant or someone else—contracts COVID-19 at the premises. Although New York courts have never addressed a situation like the COVID-19 pandemic, under New York law, the answer will likely hinge on the landlord’s control over the premises and whether the landlord knew or should have known of the risk of exposure to the virus.

In New York, the general rule is that “liability for a dangerous condition on property is predicated upon ownership, occupancy, control, or special use of the property.”[1] Accordingly, the starting point of any analysis into a landlord’s potential liability will likely be the extent of the landlord’s control over the premises where the plaintiff allegedly contracted COVID-19.

In cases where a tenant or visitor has contracted COVD-19 through exposure in a common area (such as a lobby), to the extent that the applicable lease provides that the landlord retains control over, and is responsible for maintaining, the common areas, then the landlord, rather than the tenant, will likely be liable for injuries in those common areas, absent some affirmative action by the tenant that contributed to the injury (e.g., directing a third party to a portion of the common area that the tenant knew was dangerous).[2] To the extent contracted in a common area, landlords may not be able to rely upon liability insurance taken out by the commercial tenant, in which the landlord is named as an additional insured, unless the tenant’s insurance coverage covers those portions of buildings not otherwise exclusively demised to tenants.[3]

Where the landlord controls and maintains the common area, it can be held liable for injuries occurring in the common area, but only if the landlord created the danger, or has actual or constructive notice of the danger, and nonetheless fails to “maintain[] its premises in reasonably secure and physically safe condition.”[4] For example, the Appellate Division, First Department has held that a landlord could be liable for an assault that occurred in a building’s common area where the landlord had notice of criminal activity in the common areas of the building, and yet failed to take precautions such as installing working locks and other security measures.[5] Although not specifically limited to lobbies and other common areas, New York courts have applied a similar analysis in determining whether landlords are liable for less visible injuries, such as the bacterial infection MRSA or a bronchial infection. In those cases, the courts consider whether the landowner had notice of the hazardous condition and failed timely to take reasonable steps to cure the condition.[6]

But what if the alleged injury arises not in a common area maintained by the landlord, but in the premises demised to, and controlled by, the commercial tenant? Can a landlord still be held liable under those circumstances? Again, in New York, the touchstone is landlord’s control over the premises. A landlord cannot be held liable “for injuries caused by dangerous conditions on their premises when possession ha[s] been transferred,” unless the landlord “contractually assumed the responsibility to make repairs” and “reserve[d] the right to enter in order to inspect or to make such repairs,” or if there is another statutory obligation imposed upon the landlord (e.g., with respect to lead paint).[7] At the end of the 2019, the New York Court of Appeals reaffirmed that “the degree of control retained over the property by the landlord remains an important consideration,” and that the “primary concern” is a situation where the landlord’s control is so extensive that it “would induce the tenant to forgo repair efforts that otherwise would have been made.”[8]

If the landlord retains that level of control over the premises under the terms of the lease, the next question must be whether the landlord had actual or constructive notice of the condition.[9] Courts have repeatedly held that landlords can only be held liable for injuries arising from, for example, lead poisoning, toxic chemicals, and asbestos if the landlord both retained control for repairs and knew, or should have known, of the danger and failed timely to take reasonable steps to address the hazard.[10]

Given this controlling law, in the case of COVID-19, courts will likely engage in a fact-intensive inquiry in determining whether a landlord is liable for COVID-19 exposure, whether in a common area controlled by the landlord or in the portion of the premises demised to the tenant. First, does the lease provide landlord with the right and ability to either itself take steps to remediate the condition or to force the tenant to do so? For example, whether the landlord had the obligation, or at least the ability, to disinfect the portion of the premises in question, or to require that the tenant do so. That analysis will hinge on the specific language of the lease. Second, did the landlord have notice of possible exposure to COVID-19 at the premises (e.g., a confirmed positive case or perhaps even a suspected positive case)? 

The COVID-19 pandemic is an unprecedented event, and while it is difficult to predict exactly how courts might rule on exposure claims brought in New York, the principles outlined above make clear that the specific language of landlords’ leases with their commercial tenants will be critical, as will landlord’s knowledge of what is or may be transpiring at the premises with respect to COVID-19.   

 

[1] 163 A.D.3d 636, 637 (2d Dep’t 2018).

[2] 306 A.D.2d 850, 851 (4th Dep’t 2003) (commercial tenant not liable for injury in common area because common area “was not part of the leased premises and . . . maintenance of that common area was under the control of [landlord]”); see also 266 A.D.2d 849, 850 (4th Dep’t 1999); 248 A.D.2d 585, 586 (2d Dep’t 1998).

[3] 131 A.D.3d 898, 899 (1st Dep’t 2015) (landlord not entitled to insurance coverage as additional insured under tenant’s policy because injury occurred in lobby, which was outside of the premises leased by tenant).

[4] 136 A.D.2d 122, 127 (1st Dep’t 1988); see also 37 A.D.3d 1017, 1017 (3d Dep’t 2007) (landowner not liable for icy condition where the condition was not visible and landlord put salt down); 240 A.D.2d 359, 360 (2d Dep’t 1997) (mall owner not liable for plaintiff’s injuries from tripping on wire in parking lot where landlord had no notice of the condition).

[5] 136 A.D.2d at 126-27 (collecting cases).

[6] 12 A.D.3d 238, 240 (1st Dep’t 2004) (landlord not liable for tenant’s bronchial infection, despite duty to “maintain its property in a reasonably safe condition,” where tenant failed to demonstrate that landlord had actual or constructive notice of mold condition that led to bronchial infection); 2019 N.Y. Misc. LEXIS 4196, at *4-5 (N.Y. Sup. Ct. June 19, 2019) (landowner could not be liable for alleged MRSA infection unless plaintiff established that “landowner affirmatively created the condition or had actual or constructive notice of its existence”); see also, e.g., 60 N.Y. 229 (1864) (landlord liable for injuries to tenant where landlord knew that property might be infected with smallpox, but did not disclose that fact to tenant).

[7] 97 N.Y.2d 9, 19-20 (2001); see also, e.g., 89 A.D.3d 10, 13-16 (2d Dep’t 2011); 87 A.D.3d 1395, 1396 (4th Dep’t 2011); 79 A.D.3d 1342, 1343-44 (3d Dep’t 2010); 299 A.D.2d 230, 231 (1st Dep’t 2002).

[8] 34 N.Y.3d 136, 144-45 (2019).

[9] 97 N.Y.2d at 19-20; 299 A.D.2d at 231.  The rule is slightly different in the residential context, but relies upon a similar knowledge requirement and ability to control.  For example, in a situation where a residential tenant invites guests over, and one of those guests causes injury to someone else, the landlord will typically be liable only if the injury was foreseeable (e.g., because the landlord was aware that the guest might cause the injury), and landlord’s actions (e.g., letting the guest into the building) were a proximate cause of the injury.  E.g., 92 N.Y.2d 544, 548 (1998); 136 A.D.2d at 125-26.  In the context of COVID-19, the landlord would likely have to know or have reason to believe that the guest had the virus, and yet nonetheless permit the guest into the building, in order to potentially be held liable.  It is possible, however, that courts could apply a looser standard under the circumstances, e.g., imposing liability where the landlord failed to impose reasonable screening or “social distancing” rules despite the widespread knowledge of the risks of COVID-19.

[10] 277 A.D.2d 801, 801-03 (3d Dep’t 2000); 111 Misc.2d 343, 347-48 (N.Y. Sup. Ct. 1981); 2013 N.Y. Misc. LEXIS 4510, at *10-15 (N.Y. Sup. Ct. Oct. 3, 2013).