Makes use of And Abuses Of Tort Legislation In The COVID-19 Period

Uses And Abuses Of Tort Law In The COVID-19 Era

We’re in a brave new world, as y’all know. Tort lawyers, both plaintiff-side and defense attorneys, predict an onslaught of cases. Some of these cases will be non-controversial applications of Tort doctrine to the new circumstances created by COVID-19. Other cases will push the boundaries of Tort law, which requires for liability the triad of wrongdoing, causation, and damages. Conventional suits should assuredly follow their legal course, but unconventional suits should be discouraged by courts or indeed prohibited by statute. Here’s a brief (and, importantly, incomplete) rundown:

NEW YORK, NY – APRIL 14: A retail store remains closed April 14, 2020 in the Brooklyn borough of New … (+) York City. Over 2,100 retail stores nation-wide have announced complete closures this year. New York City remains the epicenter of the coronavirus pandemic in the United States. (Photo by Robert Nickelsberg/Getty Images)

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Conventional Suits:

  • You wrongfully exposed me/my loved ones to COVID-19, and we/they got infected/got sick/died.

Such suits have already been filed against cruise ship operators, nursing homes, and entertainment venues. Sometimes, but not always, it will be easy to establish negligence (for example, if COVID had been publicly announced; if most others in the same industry had taken preventive steps that the defendant had not taken; etc.). Sometimes, but not always, it will be easy to establish causation (for example, some who are infected by the virus were in very closed locations such as nursing homes or cruise ships, and given our knowledge about incubation periods, it is reasonable to infer that they caught the coronavirus in that location). Sometimes, but not always, it will be easy to establish damages (it’s easy if a previously healthy person gets coronavirus and dies; it not so easy if the plaintiff never developed symptoms but is suing for “fear of coronavirus”…).

Where there is little evidence of negligence (e.g., where a factory created social separation and sanitized equipment after the pandemic was announced), summary judgement should be granted to defendants. Even if there is negligence in a given case, causation may be difficult to prove: maybe the gas pump should have been santized more often, but how can Mr. Smith prove that he probably contracted coronavirus at that pump? Conversely, causation may be easy to prove (for example, prisoners with coronavirus clearly contracted the disease inside prisons), but there may be no negligence (if, for example, it was simply not feasible to operate the prison in any other way).

  • You deliberately coughed/spit on me to spread the disease.

This is the intentional tort of battery. Rare indeed have been the occurrences of such batteries, but they have occurred. Batteries are both torts and crimes. If the victim is rapidly tested and is positive for coronavirus, causation may be inferred.

Unconventional Suits:

  • My business was closed by the government, or (prudently) by me because of the pandemic, and you refused to pay me despite the business interruption insurance I took out with your company.

If a business interruption insurance policy contains no exclusion for pandemics or government-ordered states of emergency, this becomes a rather conventional suit. The problem is that business interruption insurance typically does exclude coverage for communicable diseases such as the coronavirus, and often excludes it for government states of emergency. (This is because mass damages are hard to re-insure. It is for similar reasons that homeowners’ insurance typically excludes damage from floods, which may affect all homes in given area.) Pressure is currently being exerted on federal and state governments to force insurers to pay out business interruption claims regardless of policy language. The restaurant industry, limited to take-out and delivery services by state laws, may lose $225 billion in sales over the next three months. Who should pay for this loss, business owners or government or insurers? A coalition of famous chefs (including Wolfgang Puck, Daniel Boulud, and Jean-Georges Vongerichten) has created the Business Interruption Group. BIG has apparently lobbied President Trump to penalize insurers, or maybe to subsidize them into paying out notwithstanding their contract. In any case a substantial number of lawsuits have already been filed by restaurateurs.

A bill being drafted in New Jersey could put certain insurers on the hook for business interruption losses due to the COVID-19 outbreak, regardless of any exclusions their insurance policies may have. Such a law may have serious constitutional flaws under the Contracts clause, unless it applies only to contracts concluded after the bill is adopted.

  • You or your products rescued me poorly. Your doctor’s office, or your hospital, was the place where I contracted the coronavirus. Alternatively, the mask or the gloves you manufactured failed to protect me. Alternatively, the anti-COVID-19 vaccine (once it is developed) didn’t work for me.

The legal problems with such suits are numerous. Establishing negligence will be difficult: what, in foresight (hindsight being 20/20) did the doctor or hospital do wrong? How and at what cost could the mask or gloves have been rendered “perfect?” Establishing causation will also be difficult: how do we know that the victim caught the coronavirus at that doctor’s office, or when he was using the allegedly porous mask? The difficulties of such suits, combined with the downside of the “American rule” (which forces defendants who are sued to pay their own attorneys’ fees, even if they are found non-liable, and which therefore leads defendants who have done absolutely nothing wrong to settle) is a very good argument for adoption of COVID-19 immunity statutes in favor of rescuers and vaccine manufacturers. Liability should be limited to the (very rare) cases where there a manufacturing defect causes harm (for example, if a batch of vaccine were contaminated with a foreign substance that produced a “signature” harm in persons receiving the contaminated batch).

Doctors who prescribe drugs, which the FDA has approved for other uses, to COVID-19 patients should similarly be shielded by legislation from liability if those drugs don’t work, so long as scientific literature supported their use for this purpose. “Off-label prescriptions,” as they are called, are so common that virtually every drug is used off-label in some circumstances. It would be negligent not to prescribe hydroxychloroquine to COVID-19 patients in many cases, for example.

On March 27, President Trump signed into law H.R. 748, the “Coronavirus Aid, Relief and Economic Security Act” (CARES Act). This law includes so-called “Good Samaritan” language that provides federal protection against liability of volunteer health care professionals during the COVID-19 emergency response (see section 3215). This, I think, is a welcome development.

  • I’m depressed by unemployment; or my retirement fund has decreased because of the stock market shutdown.

These troubling cases are often damage without wrongdoing. Governments dictated the closing of many industries, and whether or not you think their policy choice was right, it was surely reasonable. Similarly, merchants are surely entitled to close down and furlough employees if insufficient income comes in after the pandemic strikes. Economic distress is best addressed publicly, as the CARES act has done for those directly harmed. Indirect economic harm (depression; reduced retirement income) is typically not compensated in Tort, and is best seen as a risk of investing and of living. Psychological distress, though real, is also not compensated because of the difficulty in separating out real from malingered damages. This “moral hazard” is the reason why Common Law Torts does not allow the tort of negligent infliction of emotional distress. Where there is no negligence there is even less reason to compensate.

I could go on, but I think I’ve summarized the main types of lawsuits that have been and will be spurred by COVID-19. I haven’t discussed a lawsuit against China, though — if that country negligently allowed the virus to spread abroad by hiding it from the rest of the world, its perfidy is likely the cause of trillions of dollars of real damage. As my lawprof colleague Stephen Carter has demonstrated, sovereign immunity protects this massive tortfeasor from liability (though Quixotic lawsuits have already been filed in the USA and in Israel).

I hope all readers stay safe; that’s the best way to avoid a Tort suit!