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 owes 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.
Class action lawyers are already soliciting clients for class action 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 of 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 going on, 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 the broker or agent if the agent did not know that he or she was sick and took the usual, reasonable precautions. If the case involved serious injury or death, the facts might be disputed, for example, by claims that the agent took off his or her mask or was exhibiting signs of illness when they met.
The first line of defense against any potential COVID-19 claim is to take reasonable precautions to prevent the spread of the disease. Remind the workforce to stay home if they are sick, keep areas clean, and enforce any applicable mask and social distancing requirements. Some firms also require customers to affirm that they are not and have not been experiencing symptoms of illness. Assuming these COVID-19 precautions are taken, it seems very unlikely that a broker will be found liable for serious illness or death allegedly traceable to the broker’s business. Proving negligence in such a situation would be difficult, and proving causation may be even more so, especially if the person who became ill had ventured out to various other places in the community where the disease could have been contracted. It also bears mentioning that there may very well be coverage for potential COVID-19 liability claims under the broker’s general liability policy.
So, should a broker require employees, contractors or customers to sign a waiver form in which claims arising out of COVID-19 (or other injuries) are waived in advance? As to non-licensee W-2 employees, the answer is no. Any illness that such employees acquire at work would be handled through the workers’ compensation system, and not through a personal injury claim against the employer.
Whether a broker should obtain a signed waiver of liability from the broker’s agents, and from customers before they are shown any properties, is a matter of business judgment. Under Massachusetts law, a properly drafted waiver of claims, signed in advance, will generally bar negligence claims, but not claims for gross negligence or intentional misconduct. For example, Massachusetts cases have barred negligence claims due to waivers signed in advance by people who were later injured while horseback riding, during motorcycle safety classes, and during cheerleading practice. If a customer signed a waiver and release form discharging the broker and property owner for any claims relating to the customer’s entry onto any marketed property, the release would likely be effective unless there was “gross negligence” on the part of the broker. That is a high hurdle to clear.
Some property owners may themselves be concerned about potential COVID-19 liability if they let people into their home and may insist that a broker use waiver forms before making their property available for a showing or open house. If this comes up as a common concern among property owners, then putting together a form that releases both the property owner and the broker from liability from COVID-19 (and other illnesses and injuries) makes eminent sense. Otherwise, whether a broker should use a waiver form comes down to how big a concern the broker may have about potential COVID-19 liability claims that are theoretically possible but not especially likely.