Torts: Personal Injury Tort Liability in the Wake of Covid-19

Many businesses have contracted, evolved, and adapted to stay afloat through waves of COVID-19 cases and the corresponding restrictions, especially in California, which was hit so badly in recent months. As we hope that the vaccine begins to reduce cases and bring these restrictions to an end, 2021 carries with it yet another existential threat to these already beleaguered survivors: a potential wave of COVID-related personal injury tort claims that to mix metaphors, could be the final straw for many of these businesses. More broadly, COVID-related tort litigation might stifle national economic recovery and extend the recession.

Businesses have had to determine what precautions they would take in order to remain in operation during the pandemic while official information and recommendations remained constantly in flux. Will these precautions provide legal protection?

In order for a plaintiff to bring a personal injury claim against a business, the plaintiff must show that the business breached a duty of care, meaning that the business must take steps equivalent to those that a reasonable person would take in similar circumstances to minimize harm. What this means in terms of a disease such as COVID is determined on a case-by-case basis: “[t]he degree of diligence required to prevent exposing another to a contagious disease depends on the character of the disease and the danger of communicating it to others” (25 Am. Jur., Health, § 45).

This metric leaves significant room for interpretation. There does not seem to be a clear and obvious degree to which a reasonable person might restrict contact between asymptomatic employees or require testing, so what this means in the context of COVID-19 is only just being established through the first wave of opinions currently being handed down by the courts.

The best guiding light during the pandemic has been the recommendations from health agencies such as the CDC and other public health or government authorities, but businesses must make specific decisions about how to implement these very general recommendations, leaving plenty of room for potential tort liability.

In light of the potential impact on the economy, Congress is being urged to enact legislation to shield businesses from COVID-related liability; at the same time, others worry that “enacting a COVID-19 liability shield would remove entities’ legal incentives to take steps to prevent the spread of the disease” (CRS Report, “COVID-19 Liability,” 2020).

The Consolidated Appropriations Act, passed on December 21st, 2020, declined to include any provisions shielding businesses from liability, but even if Congress does not pass any acts reducing or clarifying businesses’ liability, many states are enacting or discussing tort reform on this issue, including Kansas, Texas, and Florida.

So far, we haven’t seen any news of California lawmakers seriously discussing tort reform, but as the American Tort Reform Foundation bestows on California the dubious honor of 3rd place as one of America’s “Judicial Hellholes,” where being litigious is practically a way of life, such a shield might be necessary to stymie the coming flood of 2021 litigation that might finally drown many businesses that have just barely held on through the COVID recession. In the meantime, businesses and their attorneys will need to watch the dynamic development of COVID-related tort liability litigation closely as opinions are published and the courts begin to gravitate to standards after the fact.