Tag: Tort Liability

Green parking meter reads "expired."

How the Unpredictable Long-Term Effects of COVID-19 Infection Pose a Challenge That Tort Law Cannot Meet

Jennifer S. Bard Leave a comment

By Jennifer S. Bard

The longer the pandemic continues, the more obvious it is how effective the sweeping federal and state laws shielding medical providers from malpractice associated with COVID-19 have been. Few cases have been brought, and so far there is no record of successful judgements or settlements.

Even without these statutes, proving negligence in COVID-related cases would be exceptionally difficult, given the ever-evolving virus and treatment options. Still today it would be hard to prove that any good faith attempt at care was unreasonable and that there was a causal link to greater harm — both necessary to demonstrate negligence.

But, at some time in the relatively near future, this will change. The declared public health emergency will end, and with it the federal and remaining state blanket liability protections. A standard of care will develop and issues involving the prevention, diagnosis, and treatment of COVID-19 will become the subject of tort litigation.

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Lawyer and client in courtroom.

Liability for COVID-19 Vaccine Harms: We Need to Do Better

Dorit Reiss Leave a comment

By Dorit Reiss

COVID-19 vaccines are extremely safe, and serious harms are rare. But rare does not mean the risk is zero; thus, we need a way to determine which people have plausible claims of harm from the vaccines, and we must then compensate them quickly and generously. However, the regular torts system is not a good option for adjudicating these claims. Fortunately, we already have a better system — no-fault compensation — available to address the problem.

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Airplane taking off from the airport.

In-Flight COVID Transmission: Surveying the Liability Landscape

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By Christopher Robertson

Do airlines have legal obligations to manage the risk of in-flight infections?

In the pre-COVID era, I answered this question affirmatively. In a 2016 paper, I reviewed the scientific literature showing that airline travel is a key vector for spreading infectious disease, both because airports and airplanes tend to mix people in such close quarters that they are likely to infect each other, and because it efficiently distributes infected people around the world to then infect more people.

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Bill of Health - Gavel on mask during pandemic, class action lawsuits during pandemic

Relying on the Unreliable? COVID-19 Claims Can’t Proceed Without a Proper Standard of Care

The Petrie-Flom Center Staff Leave a comment

By Michelle Richards

In the United States, the imposition of tort liability for the transmission of an infectious disease goes back more than a century. It is no surprise, therefore, that similar claims have been filed for damages arising from the transmission of the COVID-19 virus.

However, in order for these claims to be adjudicated fairly, they must be judged against a standard of care. A standard of care provides a benchmark for the level of caution a reasonable party would take in particular circumstances. If the standard of care is not met, liability may be imposed.

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Empty classroom.

Tort Liability for Faculty Who Fail to Tell the Class About COVID Cases in Their Midst

The Petrie-Flom Center Staff Leave a comment

By Heidi Li Feldman

The more individuals must rely on their own judgment and effort to protect themselves from disease, the more they need information regarding the possibility of exposure to the cause of the disease.

This simple proposition, combined with changes in how governments and institutions are approaching COVID, means that university faculty should rethink their role in keeping their students informed about COVID cases among class members. To satisfy their legal obligations to protect students from harm, faculty must consider whether safeguarding their students from incurring COVID in their classrooms necessitates sharing such information. Fulfilling their legal duties to students may even require faculty to disregard administrative prohibitions against disseminating news of COVID cases in the class.

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A man holds a shield in his hand.

The Pathology (and Politics) of Liability Shields

Nicolas P. Terry Leave a comment

By Nicolas Terry

Over one million Americans have died from COVID-19, while 20 percent of those who survive may develop post-COVID conditions. With weak safety net policies and high health care costs it would hardly be surprising if our fellow citizens tried to shift some of their COVID costs to arguably responsible defendants.

For example, lawsuits could have emerged against either businesses (or their employees) alleging negligent failure to mitigate (e.g., vaccinate, mask, or even implement hygiene theater policies), or against health care providers for failures in the professional standard of care (e.g., failure to amass/provide adequate numbers of personal protective equipment or ventilators).

However, the predicted litigation explosion has not materialized. In its stead (and without any apparent causal valence) we have experienced a proliferation of liability shield (aka limited immunity) laws.

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Herndon, USA - April 27, 2020: Virginia Fairfax County building exterior sign entrance to Mom's Organic Market store with request to wear face mask due to covid-19 pandemic.

Tort Liability is a Potentially Powerful Tool for Pandemic Response

The Petrie-Flom Center Staff Leave a comment

By Timothy D. Lytton

When pandemic response efforts are hampered by inadequate enforcement resources and political polarization, tort liability could, potentially, be a powerful public health tool. However, starting in the initial stages of the pandemic, tort reform advocates quickly secured for businesses sweeping immunity from negligence, thereby sidelining the tort system. In this blog post, I will describe why this represents a lost opportunity.

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Construction workers wear protective face masks to prevent the spread of Covid-19.

California Supreme Court to Decide If Employers May Be Liable for ‘Take-Home’ COVID-19

The Petrie-Flom Center Staff Leave a comment

By Mark A. Rothstein

Should an employer be held liable if an employee is infected with the SARS-CoV-2 virus in the workplace and subsequently “takes it home” and infects a family member? The California Supreme Court will soon take up this question in Kuciemba v. Victory Woodworks.

The take-home liability theory was developed in the 1990s to provide a remedy for family members exposed to asbestos fibers brought home on the clothing of an employee, which later resulted in severe illness or death. Asbestos presented a unique and compelling case for recovery for a number of reasons: it is responsible for hundreds of thousands of deaths, asbestosis and mesothelioma are diseases solely caused by asbestos exposure, an OSHA standard requires employers to provide protective clothing and changing rooms to prevent take-home exposures, and strict products liability theory may be used because asbestos is a “product.”

Notwithstanding these compelling factors for plaintiffs, the states are about evenly divided on whether they recognize lawsuits based on the take-home theory. Courts in states prohibiting such actions consider the harms unforeseeable, or determine that there is no significant relationship between the exposed family member and the employer, or rely on legislation barring take-home cases.

The California Supreme Court has adopted take home asbestos liability and the California Court of Appeals has applied this to COVID-19, but the California Supreme Court has yet to rule on this specific issue.

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