Tag: covid-19 transmission

Washington, DC – September 23, 2021: A person walks among the over 681,000 memorial white flags dedicated to each of the COVID Pandemic victims at the National Mall.

Running Cover for Death: Pandemic Minimizers Normalize an Inhumane Baseline

Nate Holdren Leave a comment

­­By Nate Holdren

Last week, David Leonhardt took to the pages of the New York Times to celebrate the latest COVID death figures, which he claims mean the U.S. is no longer in a pandemic, because there are no more “excess deaths.”

The hunger for good news is, of course, understandable amid this ongoing nightmare. But to respond to death with “smile everyone, it could have been more deaths!” is grotesque because of the disrespect to the dead and those most affected by the deaths.

It also lets the powerful off the hook, which is Leonhardt’s primary motivation, I assume. In other words, looking for good news is a political position.

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Los Angeles, California / USA - May 28, 2020: People in Downtown Los Angeles protest the brutal Police killing of George Floyd.

Learning from the ‘COVID War’

The Petrie-Flom Center Staff Leave a comment

By Sam Friedman

Amid an emergent international consensus that the COVID pandemic is “over,” writings about the pandemic and its meanings have burst forth like the flowers of June.

This article will focus on one such book, Lessons from the COVID War: An Investigative Report. Produced by an eminently established collection of people, The COVID Crisis Group. The book is intelligently critical of what was done during the pandemic, but at all points it remains within the confines of what is “politically respectable.” This respectability, I argue, means that their recommendations are too narrow to protect Americans, much less the populations of the Global South, from pandemics ahead (barring unexpectedly marvelous advances in vaccine breadth and rapidity of deployment).

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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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Train tracks interchange leading around a curve as a controlled fire burns on the track during repairs.

COVID-19 and the Problem of Multiple Sufficient Causes

The Petrie-Flom Center Staff Leave a comment

By Nina A. Kohn

Although politicians and pundits warned that businesses would drown in a “tidal wave” of lawsuits seeking to hold them liable for COVID-19 infections, plaintiffs face significant barriers to recovery. Not the least of these is the requirement that a tort plaintiff establish that the defendant was the “actual cause” (or “cause in fact”) of the plaintiff’s injury. This seemingly simple requirement creates a profound barrier to holding even the most negligent, reckless, and bad intentioned actors liable for spreading COVID-19. As others have observed, in a world in which SARS-CoV-2 is increasingly ubiquitous, plaintiffs will often be unable to show that their infections resulted from any particular bad actor’s behavior.

It is in this environment that a seldom used theory of causation — the “multiple sufficient causes” approach — may find new relevance. But it is also in this environment that the American Law Institute (ALI) — an organization comprised of leading lawyers, judges, and academics that publishes influential “Restatements,” or summaries, of common law — is being urged to jettison that theory in the Restatement Third of Torts.

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Gavel lying in a courtroom.

The Impossibility of Legal Accountability for COVID-19 Torts

Chloe Reichel Leave a comment

By Chloe Reichel and Valerie Gutmann Koch

Since the first days of the COVID-19 pandemic, employers, businesses, and other entities have anticipated litigation around tort claims associated with the novel coronavirus. Early in 2020, scholars here began to grapple with questions of tort liability relating to the pandemic response. However, nearly three years later, it appears that the warnings of a “tidal wave” of lawsuits were vastly overstated.

In this symposium, we asked torts scholars to reflect on questions surrounding whether and how individuals and entities might be held liable for the harms associated with SARS-CoV-2 infection, particularly as infection has grown increasingly widespread and COVID mitigations have become more limited or entirely eliminated.

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