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.