Assessing Personal Injury Liability from COVID-19

Patrick S. Schoenburg


May 1, 2020

Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)—better known as the novel coronavirus—has turned our world upside down. The infectious disease caused by this newly emerged virus, COVID-19, has caused a public health crisis that threatens to become an economic catastrophe as governments weigh the need for sheltering in place against the financial cost of shutting down most businesses. Adding to these economic difficulties, businesses are also facing an increased risk of personal injury lawsuits due to COVID-19 exposure.

For example, in March, a lawsuit filed in San Francisco federal court against Princess Cruises alleged that passengers on the Grand Princess cruise ship became ill with COVID-19 because the ship did not employ proper screening protocols. Other businesses will likely face similar challenges.

Governments are already assessing—and limiting—potential liability in certain cases. On March 24, New York Governor Andrew Cuomo signed an executive order limiting the malpractice exposure for health care workers treating COVID-19 patients. The order directs that an action against health care professionals providing medical services in response to the outbreak can only be maintained if gross negligence is established, a higher standard than traditional malpractice and general negligence claims. By limiting liability, governments hope to encourage essential services and businesses to remain open or to reopen. Grocery stores, pharmacies and others that have continued operating to provide essential services may eventually seek similar protection.

Projecting how liability issues arising from the coronavirus will be resolved is difficult. But past experiences with infectious disease lawsuits can be a guide to determining potential liability for personal injury claims related to COVID-19.

Legal Theories in Infectious Disease Cases

Any individual or group asserting a claim as a result of COVID-19 faces a basic problem: Coronavirus is a biological, not man-made, pathogen. People can carry the virus and transmit it, but is that alone a basis for liability? Simply becoming infected at a place of business may be insufficient to support a claim.

In some cases, defendants may argue that the doctrine of ferae naturae acts as a defense. Ferae naturae is a common law defense limiting the liability of property owners for injuries caused by “animals of a wild nature or disposition.” In the 2016 case Union Pacific Railroad v. Nami, the Texas Supreme Court applied the doctrine to reverse a $725,000 verdict in favor of a railroad worker who became ill with the West Nile virus at a jobsite with an obvious mosquito issue. The court determined that the doctrine applied to insects, including the mosquitos that are the vector for the virus.

Based on this doctrine, common law does not require the owner or possessor of land to anticipate the presence of, or guard an invitee against, harm from animals ferae naturae. It has particular application to zoonotic diseases, where transmission is from animal to human, such as West Nile or hantavirus. Even if the doctrine is not extended to viruses and transmission is person-to-person, a type of “act of God” argument will likely be made in future coronavirus litigation to limit human -liability for the consequences of the -natural world.

Plaintiffs have been most successful in infectious disease cases where negligence directly contributes to exposure or spread of the pathogen. Legionnaires’ disease, also known as legionellosis, is a form of atypical pneumonia caused by legionella bacteria. Improper maintenance of hot water tanks, hot tubs and cooling towers of large air conditioners can cause its spread. When an outbreak of Legionnaires’ disease is traced back to a single facility that shows signs of a maintenance failure in these systems, a typical premises liability analysis applies.

Similarly, foodborne illnesses involving E. coli or salmonella bacteria can typically be prevented through proper food safety protocols. Cooking or handling food improperly can allow these bacteria to be spread to the consumer. Often, these types of adulterated food cases are subject to strict products liability theories, a more difficult standard for defendants. But the basis for these cases is similar to those involving negligence, i.e., defendants had knowledge of the risk of spreading an infectious disease and failed to follow standard practices to prevent it.

Other plaintiffs have tried failure-to-warn theories. Where an infectious disease, such as coccidioidomycosis, is endemic to an area, plaintiffs may argue that a defendant has an obligation to warn outsiders of its presence.

Regarding coronavirus, a common negligence theory may apply. Social distancing, not allowing employees to remain at work when ill, or even enforcing the recommended six-foot barrier between individuals are now arguably all part of the general standard of care. If a single nursing home or -similar facility becomes a “hotspot,” evidence of failure to follow these now well-known public health practices could lead to liability.

The list of public health practices forming the new standard of care will expand as the pandemic grows. Early adoption of these practices may not only be prudent from a public health perspective, but from a risk management one as well.

Evidentiary Issues in Infectious Disease Cases

Absent some form of legislated immunity from liability or a court expansively applying the concepts behind the ferae naturae doctrine, coronavirus cases may proceed on a negligence/premises liability theory against many typical business defendants. What evidentiary challenges will plaintiffs in these cases face?

Outbreaks of legionella bacteria or E. coli are not common. Hantavirus is extremely rare. When outbreaks of the associated infectious diseases occur, public health officials have established protocols to identify the source. Results of investigations by the Centers for Disease Control and Prevention, Food and Drug Administration or state and county health departments often provide the evidence leading to liability in an infectious disease case.

These investigations can identify a single source of the pathogen and then trace it through a supply chain for a foodborne illness. An epidemiological investigation can identify an unexpected increase in the disease rate and use that to find a common site of exposure.

This is difficult to do with coronavirus. Public health investigators initially attempted to track every case and identify each contact made by the infected individuals, but the rapid growth rate of coronavirus infections quickly made this impossible. With person-to-person transmission, every human interaction is suspect. It is far more difficult to definitively track person-to-person transmissions than foodborne or even zoonotic infections. Food is subject to regulations that allow tracing through the supply chain, while zoonotic investigations focus on the locations of vectors and the conditions that allow them to thrive and interact with humans.

As cases of COVID-19 rise, it may become more like influenza in its potential to form the basis for liability. Influenza is a widespread and deadly viral disease that causes tens of thousands of deaths every year in the United States but is rarely the subject of lawsuits. This may be because influenza is both ubiquitous and expected. We have a “flu season” and, despite the number of deaths, the average person does not seek to place blame when he or she contracts the disease. In addition, much like coronavirus, it is difficult to track where or how someone became infected with influenza, which creates evidentiary barriers to liability claims.

The person-to-person spread of influenza is also not tied directly to one type of negligent act. A failure to remove standing water can create a breeding ground for mosquitos that spread West Nile virus. E. coli infections can result from undercooking a hamburger. But an asymptomatic carrier of influenza may unknowingly infect many others simply by going to work. Should this create liability? 

The Future of Coronavirus Litigation

A comparison to another virus may also provide insight. Norovirus causes more than 19 million cases of acute gastroenteritis in the United States every year, leading to over 1.7 million outpatient medical visits and 400,000 emergency department visits. Norovirus can spread person-to-person and through contaminated food and surfaces. It is highly contagious and can be fatal.

Litigation around norovirus is almost always the result of an identified population becoming infected through a common, readily identified source. Hundreds of cruise ship passengers or restaurant customers who are sickened by the norovirus at the same time have sought compensation, for example. Since norovirus can be prevented through standard sanitary practices, a cluster of cases may represent a failure to implement basic food safety and public health guidelines. On the other hand, a single individual who develops gastroenteritis is unlikely to sue, absent knowledge of others sickened in the same way.

This may be the future of coronavirus claims. Individuals who become infected through community spread have no defendant to sue. By definition, they became ill as a result of contact with unknown, infected individuals.

A handful of one store’s customers developing COVID-19 may also not be epidemiologically significant. A lawsuit may fail due to a lack of evidence of a single source of infection, particularly as the infection rate grows in the population as a whole. But when large numbers of individuals on a cruise ship, in a nursing home, hotel or other facility become infected with coronavirus, litigation becomes more likely. Cruise passengers and nursing home patients are confined, limiting other possible sources of infection. As social distancing measures increase, that will become true for more of the general population as well.

Liability may also develop as a result of the coronavirus in new and unexpected ways. As of April 1, more than one million individuals in the United States had been tested and knew their infection status. This number will expand rapidly and already includes some who are asymptomatic. Will an asymptomatic individual who tests positive and fails to self-quarantine be subject to civil liability? As testing becomes more widely available, will businesses that serve the public be expected to have all of their employees tested? Is there an obligation to warn of hotspots and clusters of coronavirus cases and, if so, how specific does the warning need to be?

We already have examples of facilities conducting temperature checks at the door. Customers are told where to stand and how many will be admitted to a store at one time. What was once considered intrusive and an invasion of privacy may become the new standard of care. Failure to meet that standard could be the start of an eventual wave of litigation.

For now, the basic characteristics of COVID-19 will likely limit the number and success of those lawsuits. As the disease becomes more common and difficult to trace, evidentiary barriers to proving liability will also emerge. Nevertheless, all businesses should remember that an emphasis on good public health practices is the best protection against not just infectious diseases, but litigation as well.

Patrick S. Schoenburg is a partner with Wood, Smith, Henning and Berman and a member of the firm’s coronavirus national response team.