Could you be liable if your client gets COVID-19?
Apr 28, 2020
By Peg Ritenour, Ohio REALTORS Vice President of Legal Services
Many REALTORS have asked about their potential liability if a client claims they contracted COVID-19 as a result of a showing. This could be a seller who alleges they got the virus from an infected buyer or agent, or a buyer who claims they got the virus from a property they visited. Could the agent or brokerage be sued in either of these scenarios? Should you have a document signed that includes a waiver of liability or a hold harmless clause to protect yourself and your brokerage?
While anyone can file a lawsuit, prevailing in such a suit won’t be easy. A lawsuit filed by a buyer or seller would likely allege that the REALTOR didn’t adequately warn them of the COVID risks associated with showings or did not follow practices to prevent them from contracting the virus, such as wearing masks, gloves, wiping down surfaces, etc.
One of the first hurdles a plaintiff would have with this type of claim would be proving causation. This basically means the buyer or seller who became infected with the coronavirus would have to prove that they contracted it at the home they toured or from a buyer or agent who entered their property. As we all know, this is a highly contagious virus whose symptoms may not appear for several days after exposure. For this reason, it may be very difficult to establish that a showing was the source of a buyer or seller’s illness, versus the grocery store or pharmacy they visited, the restaurant where they got carry out, or from touching a package delivered to their home or business.
Moreover, a court would most likely find that a seller who allowed showings at their property or a buyer who visited a listed property assumed the risk of exposure to the virus. Given the widespread nature of the media coverage of the COVID-19 pandemic, it would be almost impossible for a plaintiff to successfully argue that they didn’t understand the risks associated with entering someone else’s property or allowing others into your home.
While the risk of liability may be remote, some brokers may still prefer to include hold harmless language in their documents as a precaution. That is an individual brokerage decision that should be made in consultation with your personal attorney.
Legal articles provided in the Ohio REALTORS Buzz are intended to provide broad, general information about the law and is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.
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