4. Premises Liability

• Pages: 79-94
• Author: Mark E. Anderson,Tracy S. DeMarco

4

Premises Liability

Mark E. Anderson and Tracy S. DeMarco1

Who is subject to a premises liability claim, and who are the likely

plaintiffs? What are the likely claims? What are the potential

defenses in various situations? What preventative steps should a

careful premises owner consider taking? This chapter addresses

all these important premises liability questions and more.

In the event of an infectious disease outbreak, premises owners are

faced with a unique set of challenges to minimize potential liability.

Traditionally, premises- based claims have largely targeted health care

facilities, where health care associated infections (“HAIs”) may spread

among vulnerable patient populations, and the food services industry,

where foodborne illnesses caused by salmonella, E. coli, and other bac-

teria and viruses may spread as a result of improper handling, prepara-

tion, or storage. Although these two types of premises defendants have

historically weathered the lion’s share of exposure in outbreak litiga-

tion, other types of facilities are not immune from potential liability.

Indeed, the COVID- 19 pandemic has shone a bright light on the liabil-

ity risk to all types of premises defendants in the event of an outbreak.

1. Mark Anderson is a litigation partner at McGuireWoods LLP. Tracy DeMarco is

a litigator at McGuireWoods LLP.

79

Tarry_Ch04.indd 79 27/01/21 11:03 AM

For example, just as grave concerns regarding the virus’s impact on

the continental United States were beginning to rise, the rst of many

premises- based lawsuits related to the outbreak was led against a

major international cruise line. The lawsuit related to an outbreak of

COVID- 19 that occurred onboard a cruise ship as it sailed along the

Northern California coast. Although the cruise line certainly did not

create the risk of viral infection, the complaint, seeking more than

$1 million in compensatory and punitive damages, asserted that it

did have a duty to protect its passengers from “expos[ure] to unrea-

sonable risk of harm that [it] knew or should have known about

while sailing on its vessel.”2 As alleged, the cruise line breached that

duty when it failed to notify its passengers that two passengers on

the immediately previous voyage of the ship had exhibited symp-

toms of COVID- 19 while in contact with crew members and other

passengers, many of whom continued on for the ship’s next voyage.

Notably, the husband and wife in this rst, bellwether case did not

even allege to have been infected with the virus, but instead claimed

that they were entitled to damages for the emotional distress they

felt as a result of exposure to the virus and the ensuing quarantine

aboard the Grand Princess and, later, at Travis Air Force Base in

California.3 At the time of this book’s publication, the lawsuit was

still in progress.

Cruise lines are not the only premises defendants who will see

increased liability in the wake of the COVID- 19 pandemic. Indeed,

the cruise line litigation represents only the tip of the iceberg in prem-

ises suits related to COVID- 19 infections, which underscores the vul-

nerability of premises defendants to litigation relating to the spread

of any type of infectious disease. Using a question- and- answer for-

mat, this chapter will provide premises owners with tools to reduce

their exposure in both the COVID- 19 environment and on a going-

forward basis, by describing the type of claims and defenses that

2. Weissberger et al. v. Princess Cruise Lines Ltd., Complaint, No. 2:20- cv- 02267

(C.D. Cal. Mar. 9, 2020).

3. Arrojas, Matthew, Coronavirus Outbreak: Law Firm Files More Complaints

against Carnival Corp. Subsidiary Princess Cruises, S. F. B. J. (Mar. 17, 2020),

https://www.bizjournals.com/southflorida/news/2020/03/17/grand- princess

- passengers- sue- princess- cruises.html.

80 Infectious Disease Litigation

Tarry_Ch04.indd 80 27/01/21 11:03 AM