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Written By: Rachel Leigh
Member, American Journal of Trial Advocacy
The Coronavirus Disease 2019 (“COVID-19”) has taken a remarkable toll on the lives of individuals across the world. The worldwide death toll has reached over roughly 766,080 individuals, and in the United States over 169,481 individuals have lost their lives due to the virus.[1] With over 21 million confirmed cases and 215 countries and territories affected by the coronavirus, it will be difficult to find a life untouched by the damaging impact the virus has had on the global economy. [2] As more and more people suffer hardships caused by, or stemming from, the wake of COVID-19, there will be countless parties seeking remedial measures for their loss for years to come. Some have already turned to the courts as a method of recourse. However, the unprecedented nature of a global pandemic in modern society puts those pursuing claims for the negligent transmission of the virus in a somewhat unchartered pool of litigation. Questions continue to rise as, not only individuals, but also entire countries and states, gear up to file lawsuits in hopes of recovering damages for loss due to COVID-19.
President Trump has joined the collective voice of those asserting that China is at least partly responsible for the scale of the COVID-19 global pandemic by either hiding critical information from the world or by mishandling the outbreak within its own borders; and thereby, calling for China to pay up damages.[3] Several states have either filed federal suits or have expressed their intention to do so as they join the chorus of parties seeking damages for the COVID-19 pandemic.[4] And on an individual level, since the outbreak of the COVID-19 strain, there have been many reports of individual virus carriers putting others at risk of contraction and the legal ramifications.
However, each of these lawsuits, or potential suits, while having issues of their own, each raise concerns about the viability of such claims. Suits against China will have to get around what is called “foreign sovereign immunity.” Since 1976, the Foreign Sovereign Immunities Act, or FSIA, has protected foreign states (and its agencies, instrumentalities, and political subdivisions) by providing a presumption of immunity from civil liability unless a case comes within one of the statute’s limited exceptions.[5] Suits brought against China, including claims from the first state to bring an action for COVID-19 damages, Missouri, and at least two private class actions out of Florida and Nevada, have invoked the “commercial activity” and “non-commercial tort” FSIA exceptions.[6] However, it is not entirely clear that COVID-19 would even fit into either statutory exception. Additionally, Congress has the power to amend FSIA, and it has exercised this power in the past.[7] If amended, Congress could alter the statute providing immunity to foreign states and waive the immunity in cases such as a global pandemic. Of course, Congress will have to consider the ramifications of such an act should other countries retaliate by passing similar legislation, which could open the door to claims against the U.S. for COVID-19 damages.
Despite the dangers presented by COVID-19, essential businesses have been allowed, or required by law, to stay open.[8] Those companies have been hard pressed to implement COVID-19 employee safety protocols, all while balancing issues regarding federal, state, and industry specific compliance with increased demand and a decreased workforce. Therefore, claims against such companies by its employees for failure to provide a safe work environment are also on the rise. Yet, these claims may present industry specific issues or other issues regarding well-settled jurisdictional matters that may complicate the litigation. A lawsuit filed by meat packaging workers in late April of this year alleged that their employer, Smithfield Foods Inc., failed to protect them from the disease, and that several of the workers at the Smithfield Foods plant in Milan, Missouri, where this lawsuit was filed, have been forced to stay home after displaying coronavirus-like symptoms.[9] The employees further alleged that “hundreds of employees of Smithfield’s plant in South Dakota contracted COVID-19,” and that “[a]t least two of those employees [have] died.”[10] However, the case was recently dismissed in federal court due to the Occupational Safety and Health Administration’s (OSHA’s) primary jurisdiction on the matter.[11]
Another cause of action potentially next to arise is simple negligence by those who have transmitted the virus or facilitated the spread of COVID-19 through socially irresponsible conduct. While, the deliberate spread of the virus is likely to be actionable and has criminal implications, tort law has not addressed whether spreading COVID-19 knowingly, or unknowingly, gives rise to a cause of action. Though the elements of negligence vary by jurisdiction, generally they are: (1) a duty owed by the defendant; (2) breach of that duty; (3) a causal connection between the defendant’s conduct and the plaintiff’s harm; and (4) damages incurred by the plaintiff.[12] U.S. courts have determined these elements by different means of analysis, thus it is likely that there will be varying outcomes in every state. The various scenarios by which someone could contract the virus from another individual who is infected with COVID-19 could be anything from going to the grocery store to disregarding social distancing recommendations by attending a social gathering. Whether the court uses factors such as foreseeability of harm to the plaintiff[13] or the policy of preventing future harm[14] will impact the outcome of many of these cases.
Courts have, however, long recognized a cause of action for the negligent transmittal of other diseases.[15] In prior cases, some courts have held that actual knowledge of an infection is not necessary for the imposition of liability as long as there was constructive knowledge.[16] Since COVID-19 presents a high risk of transmission, causes severe illness, in many cases death, and there is a public policy to prevent its spreading, the element of duty is fairly certain to be present in these cases. However, other elements such as causation could prove to be tricky for some plaintiffs. For example, showing that one individual was the proximate cause of another’s COVID-19 contraction despite other possible human interactions, and the virus’s long surface life, will pose significant challenges to these suits.
In short, COVID-19 has presented the global population with much uncertainty, and the legal field is no exception. The viability of these cases will play out in time. As the U.S. and the rest of the world continue to address copious varieties of COVID-19 complications, legislatures will respond, and precedent will be set. For now, it is safe to say that there will be a flood of litigation resulting from COVID-19. But, for now, the jury is still out on the success rate of negligent COVID-19 transmission claims.
[1] Max Roser et al., Country-by-country data on COVID-19 deaths, Our World in Data (May 13, 2020),https://ourworldindata.org/covid-deaths#confirmed-deaths.
[2] COVID-19 CORONAVIRUS PANDEMIC, Worldometer (Aug. 06, 2020 12:18 PM), https://www.worldometers.info/coronavirus/#countries.
[3] Sheridan Prasso, Lawsuits Against China Escalate Covid-19 Blame Game With U.S., Bloomberg Law: Coronavirus Update (May 6, 2020, 3:00 AM), https://www.bloomberglaw.com/exp/eyJjdHh0IjoiQ1ZOVyIsImlkIjoiMDAwMDAxNzEtZTk3My1kODE2LWFmZjMtZmJmZmMxNmMwMDAwIiwic2lnIjoicVArRGxFa3IrMmorQkZaODlYd0ZaZlRJODNjPSIsInRpbWUiOiIxNTg4Nzg4NjMyIiwidXVpZCI6IktGbVI2cThsRjg2Z2t5SVQrRktBQ0E9PTVFU0tGelRXZ081Q0MyZEF0T2xQeXc9PSIsInYiOiIxIn0=?usertype=External&bwid=00000171-e973-d816-aff3-fbffc16c0000&qid=6902369&cti=LSCH&uc=1320025676&et=SINGLE_ARTICLE&emc=bcvnw_cn%3A8&bna_news_filter=true.
[4] Id.
[5] Ugo Colella, INSIGHT: Should Congress Amend the FSIA to Allow Covid-19 Suits Against China?, Bloomberg Law: Coronavirus Outbreak (May 6, 2020, 3:00 AM), https://www.bloomberglaw.com/exp/eyJjdHh0IjoiQ1ZOVyIsImlkIjoiMDAwMDAxNzEtYWQ3OS1kY2FlLWFkN2YtZmRmYmVlNzIwMDAxIiwic2lnIjoiWUdhaVNiWmh6RWdIeWZnL1pOZTc0MyszcmxBPSIsInRpbWUiOiIxNTg4Nzg4NjMyIiwidXVpZCI6IktGbVI2cThsRjg2Z2t5SVQrRktBQ0E9PTVFU0tGelRXZ081Q0MyZEF0T2xQeXc9PSIsInYiOiIxIn0=?usertype=External&bwid=00000171-ad79-dcae-ad7f-fdfbee720001&qid=6902369&cti=LSCH&uc=1320025676&et=SINGLE_ARTICLE&emc=bcvnw_cn%3A13&bna_news_filter=true.
[6] Id.
[7] Id.
[8] See e.g., Joshua Gallu & Jennifer Jacobs, Trump Orders Meat Plants to Stay Open in Move Unions Slam (1), Bloomberg Law: Coronavirus Outbreak (Apr. 29, 2020, 1:24 AM), https://www.bloomberglaw.com/document/X3966E24000000?bna_news_filter=coronavirus&jcsearch=BNA%252000000171c1a0dedaa579fbfcb6650000#jcite (discussing an executive order signed by President Trump “compel[ling] slaughterhouses to remain open”).
[9] Rural Cmty. Workers All. v. Smithfield Foods, Inc., No. 5:20-CV-06063-DGK 2020 WL 2145350, (W.D. Mo., dismissed May 5, 2020).
[10] Id.
[11] Id.
[12] See generally, Payne v. Fiesta Corp., 543 S.W.3d 109, 118 (Mo. Ct. App. E.D. 2018) (stating the elements a plaintiff must establish to prevail on a negligence claim).
[13] See D.E. Buckner, Comment, Foreseeability as an Element of Negligence and Proximate Cause, 100 A.L.R.2d 942 (1965) (“[T]he abstract, vague, and imprecise concept of “foreseeability of consequences” has been a significant factor in defining the existence and extent of liability in a negligence case.”).
[14] See Kevin H. Michels, Third-Party Negligence Claims Against Counsel: A Proposed Unified Liability Standard, 22 Geo. J. Legal Ethics, 143, 155 (Winter, 2009) (stating several factors that the Court has considered including “the policy of preventing future harm”).
[15] See Billo v. Allegheny Steel Co., 328 Pa. 97, 98 (1937) (Plaintiff brought forth a claim of trespass “against defendant, alleging that he contracted the occupational disease of silicosis as a result of” the defendant’s negligence.”).
[16] John B. v. Superior Court, 137 P.3d 153, 161 (Cal. 2006).
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