Thinking of pursuing a lawsuit related to COVID-19? Find out whether it’s worth your time based on the results of related litigation.
Few things in 2020 changed society on such a global scale as the coronavirus pandemic. The highly-contagious respiratory virus has infected over 36 million people worldwide, including eight million Americans as of this writing.¹
Worse, COVID-19 has killed over 200,000 people in the U.S. to date. The hardest hit are older Americans, and those with comorbidities, such as diabetes and pre-existing respiratory diseases.²
The economic impact has also been devastating. Millions of people have lost jobs and businesses have closed due to lockdowns and stay-at-home orders.
The drastic changes wrought by the coronavirus outbreak are bound to impact our legal system. Lawsuits resulting from exposure to disease are nothing new. Lawsuits regarding exposure to HIV have existed for years.
There has not yet been a massive surge of coronavirus lawsuits, although an increase in COVID-related litigation is inevitable. This article will examine the types of claims arising from COVID-19.
Legal Theories of Liability for COVID-19 Exposure
People infected with COVID-19 have many options for lawsuits.
The most frequent COVID-related claim will likely be negligence. This means that you got sick because someone else exposed you to the virus.
In most states, you have to show the following to win a negligence case:
- The person whom you are suing owed you a duty to not expose you to COVID-19.
- That person carelessly exposed you to COVID-19.
- That exposure caused you to get sick.
- Your sickness caused you to suffer injuries.
A negligence case is also appropriate when a family member gets sick or dies. With negligence cases, the existence of a duty is often the most important point. A duty can be found where an employer or healthcare provider was the one who caused exposure to the virus.
Because negligence claims are based on mistakes rather than intentional misbehavior, they tend to be the majority of personal injury lawsuits in most states. This will likely be true for coronavirus lawsuits as well.
Other types of personal injury claims are also possible. Assault and battery claims are possible where someone deliberately puts you in danger. For example, someone who intentionally spits or coughs on you may be liable for getting you sick.
Assault claims are different from negligence claims in two ways:
- Assault lawsuits need the defendant (the person you are suing) to have acted on purpose.
- Assault lawsuits don’t need you to prove the defendant owed you a duty in the same way that a negligence claim would.
That said, assault claims will be rare. There will probably be more coronavirus-related claims for careless behavior.
Coronavirus Lawsuits Against Businesses
There is a lot of concern about suing businesses for exposure to COVID-19. Lawmakers are struggling to balance protection for already-strapped business owners while maintaining meaningful legal protection for employees.
Businesses may be sued by employees claiming they were not fully protected. (The lawsuit would only be necessary if the injury was not covered by worker’s compensation laws. Workers’ compensation should be the first resort for work-related injuries.)
An employee’s concern about infection is understandable. However, a lawsuit on this basis would be difficult to prove. To win, a sick employee would have to prove that they got the virus from work rather than home or somewhere else.
COVID-19 breakouts at a business don’t just put employees at risk. Business owners may be faced with high-dollar “take-home lawsuits” filed by the family of an employee.
The family of Esperanza Ugalde recently filed a wrongful death lawsuit against the meatpacking plant where her husband worked as a butcher. The family alleges Mrs. Ugalde was exposed to the coronavirus when her husband brought the illness home from work.
Customers could also sue on the basis that they were infected at the business. A customer may have more hurdles to overcome than an employee. A customer might have to show that they did not “assume the risk” of exposure.
For example, it is difficult (if not impossible) to eat in a restaurant while wearing a mask. Even if a diner could prove the restaurant infected them, they would have another problem. The restaurant could argue that the customer chose to come there, remove the mask, and eat. Those choices increased their risk of infection, and the diner assumed that risk.
Whether the “assumed risk” argument would win depends on the facts and state law. In general, this argument makes lawsuits by customers difficult to win.
Coronavirus Lawsuits Against Nursing Homes
Lawsuits against healthcare facilities, particularly nursing homes, are often emotionally charged.
A nursing home has a duty to care for the heath of its patients. The failure to protect fragile patients from a contagious disease is likely to lead families to take legal action.
Experts estimate that 40 percent of coronavirus deaths in the U.S. occurred in nursing homes and other long-term care facilities.
Many states have acted to protect nursing homes from coronavirus lawsuits. According to the American Bar Association, at least 26 states (including Illinois, Michigan, New Jersey, and New York) have passed measures to protect healthcare and assisted living facilities from these lawsuits.
Those state laws bar standard negligence claims. This means that only claims for intentional misconduct or gross negligence can proceed.
Gross negligence goes beyond mere carelessness. It means reckless disregard for someone’s safety. Conscious violation of someone’s rights is also actionable. Many states have thus made coronavirus lawsuits against medical facilities much more difficult.
Coronavirus Lawsuits Against the Government
Lawsuits against business and employers will focus on virus exposure.
COVID-19-related lawsuits against government and health officials are more likely to involve mask mandates and lockdowns. Many groups have taken the position that these government measures are unconstitutional.
In July of 2020, a Florida judge refused to block a mask mandate. He ruled that the ongoing public emergency caused by COVID-19 is “exactly the kind of exigent circumstance that justifies government intrusion into personal autonomy.”
Similar issues have been raised regarding lockdown and shutdown laws. These “shelter-in-place” laws vary between states and cities. Lockdown orders typically close what the government deems “non-essential” businesses and forbid social gatherings.
More often than not, “social gatherings” include church and other religious services. Many question whether lockdowns are a violation of the First Amendment’s guarantee of free exercise of religion or other rights. Some people have filed lawsuits in an attempt to force the reopening of their states.
In a case brought by three Michigan health care facilities over the governor’s extension of “lockdown” orders that prohibited “non-essential” medical procedures, the Michigan Supreme Court ruled that the governor “[D]id not have the authority to issue or renew executive orders related to COVID-19 beyond April 30.”
In May, the Wisconsin Supreme Court struck down mandatory “stay-at-home” orders.
More recently, a Federal Judge struck down the Pennsylvania Governor’s lockdown orders as unconstitutional, ruling that “[T]he solution to a national crisis can never be permitted to supersede the commitment to individual liberty...”
As the pandemic continues, so do lawmakers continue struggling to protect public safety without sacrificing civil liberties and economic stability.
Litigation in the Age of COVID-19
Unfortunately, COVID-19 is here to stay. The virus will continue to disrupt the country and its people for the foreseeable future. It is important that we all protect our health and well-being.
If you or your loved ones get sick because of someone else’s negligence, you can take action. Contact an attorney in your state for a free consultation or case evaluation.
If your other rights are being violated, you should also speak with an attorney. While every case is different, public health concerns make these lawsuits complicated. You are in the best position to know how this crisis is affecting you and your family. Do your research, and get expert advice before making any decisions.
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