If you have attended my “Fridays with Fran” web meetings, nothing below will surprise you. Reopening Amenities is risky business. Courts will look to prior cases for guidance in addressing new cases.
We do not have to get to polio, the 1918 influenza or smallpox to find court cases involving debilitating and deadly communicable diseases.
Cursory research reveals the 1953 case of Earle v. Kuklo, 26 N.J. Super 471 (App. Div. 1953). In Earle v. Kuklo, the Kuklos owned a two-family house. Mr. and Mrs. Kuklo and their daughter lived in the first-floor unit. Mr. and Mrs. Earle rented the second-floor unit. Shortly after moving in, the Earles’ daughter, Bonita, was born.
The Earles sued the Kuklos claiming that the Kuklos had tuberculosis, that the Kuklos knew they were infected before the Earles moved in, that the Kuklos failed to tell the Earles about their tuberculosis and that the Kuklos did not “abstain from close personal contact with the Earles” thereby transmitting tuberculosis to baby Bonita. Baby Bonita apparently became very ill and suffered a long hospitalization.
The Trial Court dismissed the case but the Appellate Court reversed, noting various duties specific to tuberculosis and adopting the principle that “a person who negligently exposes another to an infectious or contagious disease, which such other thereby contracts, is liable in damages therefor…The degree of diligence required to prevent exposing another to a contagious or infectious disease depends upon the character of the disease and the danger of communicating it to others. To show negligence in exposing another to a contagious or infectious disease, it must be proved that the defendant knew of the presence of the disease.”
The Appellate Court went on to note: “One who rents premises to another, knowing that the premises are infected with contagious disease germs which render them dangerous, without disclosing that fact to the tenant, is liable in damages for injury resulting from contracting of the disease by the tenant or a member of his family”. There are many facts that distinguish Earle v. Kuklo from Associations dealing with COVID-19 but the case provides no comfort.
What to do?
Governmental & Health Organization Requirements. Administer each amenity in accordance with governmental requirements and the recommendations of governmental health organizations but be aware that these requirements and recommendations should be viewed as minimums. Therefore, compliance with these requirements and recommendations may not be enough if the Association has particular conditions that require more restrictive administration. Compliance is required and is good but do not assume compliance is enough.
Specific to Amenity & Population. Such administration should be specific to that amenity and the population reasonably anticipated to be exposed to/at that amenity.
If Cannot Then Close. If the Association is unable or unwilling to reasonably ensure that the amenity is administered in accordance with governmental requirements and the recommendations of health organizations etc., the amenity must be closed or be kept closed.
Insurance May Not Help. Put carriers on notice of claims but do not rely on insurance. Many carriers are already claiming that they will not provide defense or coverage with respect to COVID-19 related claims.
Obtain Releases. Even though releases might be overcome in certain instances, they still may defeat certain claims. Obtain releases before reopening amenities.
Make and Retain Records. The Association must act reasonably to protect residents, employees, visitors etc. Make and maintain records of the things the Association has done. Amend Bylaws. By-laws may be amended to secure a certain level of immunity.
Communicate with the Membership Proactively, Regularly, Repeatedly, Forthrightly, With Facts and Via Multiple Communication Channels. Association members understandably want their lives back to normal. They want their amenities open, they want to be safe, they want to be healthy, they do not want to pay extraordinary assessments and they certainly do not want to pay extraordinary sums to defend lawsuits or pay claimants if claims are not covered by insurance. Associations must communicate with the membership proactively, regularly, repeatedly, forthrightly, with facts and via multiple communication channels. These desires will not always be able to be harmonized but communicating the facts and articulating the rationale over and over will contribute to understanding and Association credibility.
Please contact us immediately with any questions. Thank you.