As the world struggles with a new, more contagious and lethal variant of SARS-CoV-2, the virus that can lead to development of Covid-19 disease, the issue of legal consequences related to the spread of the virus came to mind. That is something about which I’ve not seen widespread discussion or analysis.
This post surveys some of the theories under U.S. civil and criminal law that might serve as a basis for asserting liability for actions that are threats to public health.
The information in this post is not intended nor should be viewed as legal advice. This post is offered as merely a brief overview of some of the potential legal issues that could arise and to serve as food for thought.
Liability For Transmitting A Communicable Disease
Civil liability for intentional or negligent transmission of a communicable disease was a well established proposition under American law long before SARS-CoV-2. In 1937, a Pennsylvania court found that an employee could sue his employer for negligence that resulted in his contracting silicosis. Billo v. Allegheny Steel Co. (Pa. 1937) 195 A. 110)(“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”).
Courts have allowed lawsuits for negligent transmission of various communicable diseases based on both actual and constructive knowledge of infected status 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)(tuberculosis); Mussivand v. David, 45 Ohio St. 3d 314, 544 N.E.2d 265 (1989)(venereal disease); Berner v. Caldwell, 543 So. 2d 686 (1989)(genital herpes).
Transmitting a communicable disease has also been treated as a criminal matter in some instances. I first became aware of such liability during the emergence of the HIV crisis while working in the legal department of a major midwestern hospital. In the 1980s and ’90s, many states passed laws making it a crime to knowingly engage in activities that pose a risk of HIV transmission.
For example, under an Illinois statute a person can be charged with felony criminal transmission of HIV when, knowing that he or she is infected with HIV, the person (1) engages in intimate contact with another; or (2) transfers, donates, or provides his or her blood tissue, semen, organs, or other potentially infectious body fluids for transfusion, transplantation, insemination, or other administration to another. Knowledge of infection could be actual or constructive, i.e., having good reason to believe they are infected.
These laws were passed when HIV was viewed as tantamount to a death sentence and prejudice against the gay community and drug abusers was widespread. Having statues directed against a specific communicable disease is unusual in my experience. While SARS-CoV-2 is not as lethal as HIV was back then, the public policy behind punishing intentional conduct that injures others is essentially the same. Many HIV criminal statues are still on the books even though now HIV treatments are very successfully.
So under some circumstances, individuals who transmitted a contagious disease to others have been found liable for monetary damages or to have committed a crime. Although the nature of the SARS-CoV-2 pandemic presents some difficult hurdles to overcome, the principles applied to cases about other communicable diseases should apply equally to transmission of the virus that is currently ravaging the United States and the world.
In the U.S., recovering damages for personal injuries caused by others is often based on the legal theory of negligence.
Elements Of A Cause Of Action For Negligence
The elements of a cause of action based on negligence vary slightly in wording from state to state. In general, to establish a cause of action for negligent conduct, a plaintiff (the person suing) must establish that (1) the defendant (the person being sued) owed plaintiff a duty; (2) the defendant breached that duty; (3) the defendant’s breach harmed the plaintiff; and (4) the plaintiff suffered damages.
- Duty to Prevent the Transmission of COVID-19
Finding as a matter of law that there is a duty to take reasonable measures to avoid transmitting a disease that has killed more than 600,000 Americans and sickened millions more should be a piece of cake for courts just as it was in cases involving other communicable diseases.
In Earle v. Kuklo, cited above, on page 474 the court quoted a legal treatise of the day which stated in part:
The general principle is well established that a person who negligently exposes another to an infectious or contagious disease, which such other thereby contracts, is liable in damages therefor. * * * The degree of diligence required to prevent exposing another to a contagious or infectious disease depends upon the character of the disease and the danger of communicating it to others.
2. Breach of the Duty
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 SARS-CoV-2 or a person who has symptoms of COVID-19 or perhaps even a person who has had close contact with someone who is infected engages in conduct that could infect others. Merely going out in public while knowing one is or likely is infected may constitute a breach of the duty owed to the public. A breach of duty may not be as clear if the infected person exercises precautions such as wearing a facemask. washing hands, and maintaining social distancing.
3. Establishing a Causal Connection to the Injury Suffered
In the current pandemic, this is the most difficult hurdle for a plaintiff to overcome. Establishing liability for negligence requires showing that the defendant passed the infection to the plaintiff. With SARS-CoV-2 being prevalent in many communities and easily passed from person to person, establishing that the defendant’s actions were the proximate cause of the plaintiff’s injuries is a tough task but not an impossible one.
In civil suits, a plaintiff must prove the elements of the case only to a standard of the preponderance of the evidence. In other words, that the defendant is more likely than not the source of the infection. Another way to look at it is that the probability that the defendant was responsible is greater than 50%. The civil standard is a much easier burden to meet compared to criminal cases where the standard of proof is beyond a reasonable doubt.
The civil standard of proof will require facts and circumstances in which the defendant is unable to attribute the infection to other plausible sources.
4. The Plaintiff Suffered Damages
Damages for infecting someone with SARS-CoV-2 are relatively easy to identify. They could include medical bills, lost wages, loss of future income in the case of death or long-term impairment, loss of spousal consortium, pain and suffering, and losses incurred from quarantining among a multitude of other potential losses a plaintiff might suffer.
Even if a plaintiff is successful in establishing the elements of negligence, the defendant can assert defenses such as assumption of the risk or contributory negligence by the plaintiff that could eliminate or reduce the amount of his liability.
Negligence isn’t the only legal theory on which liability could be based. Circumstances could also support legal actions for intentional infliction of emotional distress.
Intentional Infliction Of Emotional Distress
Courts in the U.S. recognize a cause of action for intentionally inflicting emotional distress. To establish a prima facie case, a plaintiff must show that the defendant’s conduct was outrageous, that the defendant acted for the purpose of causing the victim emotional distress so severe that it could be expected to adversely affect mental health, and that the defendant’s conduct caused such distress.
Only the desire to cause emotional distress is required. Actual infection is unnecessary. While a negative test after several days could confirm that there was no infection, damage to the victim’s emotional and mental health once incurred likely would not be short lived.
From time to time their are news reports of people who are dismissive of Covid-19 acting in a way designed to make others fearful that they might contract the disease such as by coughing near others and claiming to be infected with the virus. Cases like that have generally been treated as criminal offenses and will be discussed below.
Criminal Liability For Transmitting A Communicable Disease
There are a wide variety of statutes, ordinances and orders that could be used to address transmitting SARS-CoV-2 as a criminal matter under state and federal law.
In Pennsylvania, a man was charged with making terroristic threats after deliberately coughing while smiling and laughing near an elderly man who was wearing a medical face mask. The man had told the victim he had COVID-19. A similar event occurred in New Jersey, where a man allegedly purposefully coughed on a grocery store employee and said that he was infected with the coronavirus. That man was also charged with terroristic threats.
In Missouri, a man was charged with making terroristic threats when he posted a video of himself licking packages at a Walmart and saying, “Who’s scared of coronavirus?” Pennsylvanian prosecutors also charged a woman with making terroristic threats and a threat to use a “biological agent” after coughing on $35,000 worth of food in a grocery store. These are just the ones I’ve come across. There are probably many more instances of this type of knuckleheaded behavior that have occurred or will occur in the future.
Such behavior could also run afoul of federal law. On March 24, 2020, Deputy Attorney General Jeffrey Rosen sent U.S. attorneys and federal law enforcement agencies a memo informing Department of Justice officials that they should consider prosecuting certain “purposeful exposure or infection of others with COVID-19” under federal terrorism-related statutes.
The Rosen memorandum lists several federal statutes that may be relevant. The most important is 18 U.S.C § 2332a, which criminalizes the use of weapons of mass destruction. The statute makes it a federal offense to use, threaten, or attempt to use or conspire to use a “weapon of mass destruction” against persons within the United States. Section 2332a(c)(2) defines that term to include “any weapon involving a biological agent, toxin, or vector,” as those terms are defined in 18 U.S.C § 178, which in turn defines “biological agents” to include viruses “capable of causing death, disease, or other biological malfunction in a human.”
Federal statutes like 18 U.S.C. § 2332a have been used to prosecute individuals who have sent their victims powders resembling anthrax, another communicable disease. See, e.g. United States v. Davila, a 2006 anthrax hoax case, in which the defendant mailed “anthrax” (actually baby powder) from his Connecticut prison to the Connecticut State Attorney’s office.
State and federal criminal laws relating to assault, reckless endangerment, attempted murder and others could also be brought to bear against those who knowingly spread the virus.
In addition, there are numerous provisions under state and local law subjecting individuals to criminal sanctions for failing to observe public health orders.
For example, New York City public health laws state that “No person shall intentionally or negligently cause or promote the spread of disease…by failure to observe, or by improper observance of, applicable requirements of isolation, quarantine, exclusion, treatment or other preventive measures.” (New York City Health Code section 11.31)
And an Illinois law gives the state fairly wide latitude to hand down criminal punishment to anyone whose conduct runs counter to or interferes with a health-related order: “Whoever violates or refuses to obey any rule or regulation of the Department of Public Health shall be deemed guilty of a Class A misdemeanor.” (Illinois Revised Statutes section 2305/8.1)
Numerous criminal prosecutions and fines under these public health laws and ordinances are unlikely as officials prefer to obtain voluntary compliance and do not want to waste time, effort and resources prosecuting thousands of people.
The potential for civil or criminal liability for spreading SARS-CoV-2 is not something only unvaccinated people need to consider. A recent study shows that with the delta variant, vaccinated individuals can be infected with viral loads equal to unvaccinated people. That makes infected vaccinated individuals equally capable of spreading the virus if they are infected with delta. In legal terms, vaccinated individuals probably have the same duty of care as those who are unvaccinated.
With the exception of the few who have been charged criminally, I haven’t seen cases where people have incurred liability for spreading or threatening to spread SARS-CoV-2. That doesn’t mean it hasn’t happened or won’t happen. After all, the U.S. is one of the most litigious countries in the world.
If businesses and cities make things like eating in restaurants, going to movies, or attending large public gatherings like sporting events contingent on being vaccinated, it seems inevitable that some will knowingly make false statements or falsify documents to participate in those events. If so, and assuming the other elements of civil or criminal liability can be established, those are the kinds of scenarios plaintiff’s attorneys dream about.
Thanks for reading my musings on potential liability related to Covid-19. What are your thoughts on this topic?