By Shelly Simana
Can people infected with COVID-19 sue the people who transmitted the disease to them for negligence, even if those people did not do so knowingly?
This question is likely to arise soon, as people may seek damages for losses resulting from socially irresponsible conduct.
Since the outbreak of the novel coronavirus (COVID-19), there are many reported cases of SARS-CoV-2 virus carriers who put other individuals at risk.
In one case, for example, two travelers who tested positive for COVID-19 decided to travel to an island in the Jeju Province of South Korea. “Despite having symptoms from day one (of their five-day trip here), they went ahead (with their itinerary),” said Jeju Province Governor Won Hee-ryong, and “as a result, more than 20 businesses were forced to temporarily close and over 90 residents were placed under quarantine.”
In another case, a New Hampshire COVID-19 patient, who was a hospital employee, went to an event despite being told to stay isolated.
Last, in what is known as the “Coronavirus Flight,” a group of 114 members of the Chabad Lubavitch Hasidic group flew from New York to Israel, despite the fact that there were serious concerns about those passengers following the massive spread of COVID-19 in the Crown Heights neighborhood. Upon arriving in Israel, at least 65 of those passengers tested positive for COVID-19 and the 200 other passengers and crew who were on the plane were sent to self-quarantine for 14 days.
These are just a few examples of COVID-19 transmission. One could think of several other possible scenarios in which individuals who are infected with COVID-19 can transmit the disease to others; when those individuals go to the supermarket, work out in the park, or do not follow the recommendation to keep a safe distance from others and avoid gathering spaces.
Although it is yet to be determined whether a cause of action exists for negligently transmitting COVID-19, it seems that at least the individuals in the cases described above (i.e., the two travelers to the Jeju province, the patient from New Hampshire, and the Hasidic group) should be held liable, as they knew or reasonably should have known that they were carriers of the virus; those people had a duty to prevent transmission of COVID-19.
The elements for negligence differ among states in the U.S., but typically in order to establish a cause of action for a negligent conduct, a plaintiff must establish that (1) the defendant owes him or her a duty; (2) there was a breach of that duty; (3) there is a causal connection between the defendant’s conduct and the harm incurred to the plaintiff; and (4) damages to the plaintiff.
Duty to Prevent the Transmission of COVID-19
If we were to approach the potential defendants from the cases mentioned above, they would likely to argue that they have a “right to travel” or a “right to go to an event.” In Hohfeldian terms, they would assume they hold a “Privilege-Right,” and thus, have no duty to others. Such arguments should be rejected.
To determine whether there is a duty, courts typically consider different factors, among them “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved” (see Rowland v. Christian (1968) 69 Cal. 2d 108).
Tort case law has not yet provided an answer to whether contracting COVID-19 during a flight, private event, work out in the park, or grocery store constitutes harm. However, courts have long recognized a cause of action for negligently transmitting other diseases. “To be stricken with disease through another’s negligence is in legal contemplation as it often is in the seriousness of consequences, no different from being struck with an automobile through another’s negligence” (see Billo v. Allegheny Steel Co. (Pa. 1937) 195 A. 110).
In several states, courts have allowed lawsuits for the negligent transmission of diseases based on both actual and constructive knowledge and imposed liability on individuals who have harmed others (see, e.g., Earle v. Kuklo, 26 N.J. Super. 471, 475, 98 A.2d 107 (1953); Mussivand v. David, 45 Ohio St. 3d 314, 544 N.E.2d 265 (1989); Berner v. Caldwell, 543 So. 2d 686 (1989)). In the case of John B. v. Superior Court (2006) 38 Cal. 4th 117, for example, the California Supreme Court determined that the burden of a duty of care is “on defendants who know or have reason to know of their HIV infection is minimal, and the consequences for the community would be salutary.” The Court argued that the “tort of negligent transmission of HIV does not depend solely on actual knowledge of HIV infection and would extend at least to those situations where the actor, under the totality of the circumstances, has reason to know of the infection.”
Because both the likelihood of the transmission of COVID-19 and the severity of the risk and illness associated with it are high and there is also a public policy to prevent its spread, SARS-CoV-2 carriers owe a duty to other individuals, particularly to those in close proximity. As the different cases previously described show, the infected individuals either knew or had reason to know that they are carriers of SARS-CoV-2 — they developed symptoms or had close contact with other infected individuals. Despite that, they decided to act in a way that puts others at risk.
A Breach of Duty
After establishing the existence of a duty, we must show that the duty was breached. A breach of the duty to prevent the transmission of a disease, and in this case COVID-19, occurs when a person who tested positive for COVID-19 or a person who has had symptoms of COVID-19 leaves his or her house and visits public areas or uses public services. Due to the ease with which SARS-CoV-2 spreads, it is highly likely that the infected person will transmit it to other individuals. Therefore, if the infected person leaves the house knowing or suspecting that she or he is infected with COVID-19, then he or she breached the duty to prevent its transmission. Furthermore, given the extensive media coverage and the exposure people have to information about COVID-19, it seems difficult to argue that a person who knew or suspected that he or she was infected with COVID-19 and left his or her house took reasonable precautions.
After establishing the breach of duty, there is a need to demonstrate that the breach was the proximate cause of the plaintiff’s harm. As previously discussed, due to the ease with which SARS-CoV-2 spreads, the presence of the infected person in public places puts others at an unreasonable risk for contracting it. However, it seems that some difficulties may arise in proving that the infected person was the proximate cause of the disease in other people, especially when SARS-CoV-2 can remain on surfaces for days. A stronger claim, though, would exist when the infected person also had some close contact with other individuals.
The final element to be proven is damages. In the case of COVID-19, a plaintiff may have pecuniary loss due to high medical expenses and severe physical pain and suffering, which ultimately may lead to death.
To conclude, it is the responsibility of every person to act in a responsible way when he or she knows or should know that he or she is infected or may be infected with COVID-19. When individuals negligently transmit the virus by leaving their houses and visiting public areas, they should be held liable.