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With the ever-changing landscape due to the coronavirus (COVID-19) pandemic, there have been a plethora of advisories and tips to stay safe and healthy. That will become even more evident in the coming months as cities intend to unveil plans that will allow residential and commercial to re-open.  Many of these plans are quite involved and nuanced due to the exposure to public areas, but there are even more particular decisions that entities such as community associations and homeowners’ associations will have to make based on common areas where members often congregate and amenities, such as pools, meeting rooms, and gyms, that members often utilize.

At this point, the cautionary and sanitary measures that must be taken to slow the spread of COVID-19 have been etched into our minds: wash your hands often, wear facemasks and gloves, stay six feet apart, avoiding gyms, limiting social gathering, and so on.  While the source of COVID-19 is inherently difficult, and nearly impossible, to discern because the virus is largely airborne, litigation has already sprouted up in the context of entities that utilize common areas.

In particular, wrongful death and negligence lawsuits are beginning to surface at nursing homes in California and Illinois, but States may seek to thwart lawsuits and immunize nursing homes from liability as a result of COVID-19.

Further, JBS USA, a leading processor of beef, pork and prepared foods, and its entities were named in a multi-count complaint in Pennsylvania, (Estate of Enock Benjamin v. JBS S.A et al., Philadelphia Court of Common Pleas, May Term 2020, Docket No. 200500370), which includes claims of wrongful death, negligence, and fraudulent misrepresentation, that alleges an employee died due to “the predictable and preventable result of the JBS Defendants’ failure to consider the safety of their owner workers,” and that they “knew, or in the exercise of a reasonable degree, should have known that if OSHA and CDC guidance were not followed, workers would become infected with and could succumb to COVID-19.”

A lawsuit was also filed in Federal Court in the Amarillo Division of the Northern District of Texas, (Case No. 2:20-cv-00125-z; Ka La Ya Lay, Aye Aya Lay, Tun Lah, Individually, and Tun Nee Individually and as next friend of minor child, K.M.N. and as Representatives of the Estate of Pwar Gay, Deceased Vs. Tyson Foods, Inc.  The lawsuit alleges an employee worked as a meat cutter at the Tyson meatpacking plant in Amarillo, Texas and succumbed to a COVID-19-related death. 

Again, there are a number of states and state representatives who are seeking legislation in order to restrict the rights of victims to sue entities such as businesses, churches, and schools over COVID-19 claims.

To that end, due to the difficulty in ascertaining the source of COVID-19, precedent supports the notion that victims’ claims may be too speculative to state a claim. Additionally, claims of exposure to the AIDS virus in shared or common areas such as sinks, toilets, and showers have been rejected as too speculative to state a constitutional violation. See Clarke v. Collins, 5 F.3d 1494, *2 [published in full-text format at 1993 U.S. App. LEXIS 39386] (5th Cir. 1993) (unpublished) (rejecting claim of exposure to AIDS virus and other diseases in common showers); Glick v. Henderson, 855 F.2d 536, 539 (8th Cir. 1988) (rejecting claim of possible exposure to AIDS and other diseases through casual contact in common areas and in preparation of food.); Carroll v. Rupert, 2017 U.S. Dist. LEXIS 133542, 2017 WL 2369387 (E.D. Tex. 2017) (rejecting claim for protective shower shoes in common shower); Johnson v. United States, 816 F. Supp 1519 (N.D. Ala. 1993) (rejecting plaintiff’s claim of cell mate’s blood on their sink, toilet, and towels finding BOP practices and policies governing handling of prisoners with AIDS do not violate Eighth Amendment).

As cities proceed to open, the protocols for industries to follow are being released. For example, on May 15, 2020 in Miami-Dade County, Mayor Carlos A. Gimenez released a 175-page plan titled “The New Normal, A Guide for Residents and Commercial Establishments.” The New Normal includes Specialized Protocols for Swimming Pools, Gyms, and Hotels and Accommodations.

So, while there are general guidelines that people are being advised to follow, people in charge of the decision-making at community associations and homeowners associations, such as the Board of Directors, must comply with certain requirements.

The Association Board Members must be cognizant of the current disposition of the national, state, and local guidelines, and state or local health emergency declarations, as these entities will be playing an important role in safeguarding the areas they are responsible for and potentially preventing any exposure to litigation.

First, the decision-makers must ensure the Coronavirus Disease Guidance for Shared or Congregate Housing and any subsequent amendment and/or announcements, are complied with.  Second, a review of the state and/or city re-opening guidelines, such as Miami’s “The New Normal” will assist with ensuring the applicable guidelines are abided by.  For example, in Miami’s guidelines, there is specific protocol for Swimming Pools that includes deep cleaning prior to opening, situating hand sanitizing stations around the pool, and proper recirculation pumps are set to run at least 3 hours before the pool opens to 3 hours after the pool is closed.  While there is likely not a one-size fits all model to follow, Community Association Institute has literature directly related to opening pools and other COVID-19-related developments.

Lastly, during the process of opening their common areas and amenities, it is important that the Board Members responsible consult with any property manager, their attorneys, their insurance carrier contact, and the Association members’ themselves, in order to ensure all the appropriate safeguards are followed and all people involved with the re-opening process are kept apprised of the developments and what they must do to ensure safety and health of the communities.