Liability for COVID-19 Transmission

- by Aron Solomon

Whether we are already beginning to see the second wave of COVID-19 or simply dealing with the result of so poorly managing the first wave, what is clear as we transition from summer to fall is that we will see a marked increase in the number of cases in the weeks and months ahead.

Lawyers and eventually courts will also deal with a COVID-19 wave, that of virus-related litigation. Personal injury law firms will begin to see new clients seeking redress for damages incurred as a result of becoming infected with the virus. While successfully suing a virus would be an artful legal trick, there possibly be a significant volume of cases against individuals who transmitted COVID-19 to people who became sick, possibly died, and almost surely sustained physical, psychological, and economic injuries.

What legal liability might each of us have for transmitting the virus to another person? Given that many people who have the virus are asymptomatic, and that it is possible to transmit the virus without becoming infected oneself, this is bound to be complex legal territory. But while the virus is still relatively new, the legal ground here may not be as new as we imagine.

It remains too early to see what the position of the courts will be on liability for COVID-19 transmission, but from a legal theory perspective, individuals who knew or should have known that they were infected with or carrying the virus could be held liable for damages where they transmit the virus to another person.

A timely example to examine would be the “no-maskers” flooding our social media feed with their ardent refusal to wear masks in stores, particularly those who mandate mask-wearing. These anti-maskers assert a fictitious absolute right (they often cite their equally inaccurate “Constitutional right”) to enter a private place of business without wearing a mask. In refusing to wear a mask while engaging in commerce, they are essentially saying that they have no obligation to anyone else - that their freedom of movement and activity is paramount.

This position is obviously legally inaccurate as well as morally reprehensible in a global pandemic. Each one of us has an obligation not to intentionally or negligently inflict injury on other people. Whether our weapon of choice would be a pocket knife, a powerful car, or a transmissible disease (COVID or any other), we cannot simply make a public declaration that we are disregarding this obligation, thereby releasing us from it.

If we look at usual tort concepts, it is possible for someone who infects another to be held liable under the law. They would need to either know that they have the virus or have a reasonable suspicion that they may be infected. This can be any combination of physical symptoms, having been in relatively close proximity to someone who was discovered to have the virus, or any other number of factors which would have a reasonable person question whether they may at that time be carrying the disease.

If the person knew or should have known that they had or might have had COVID-19, then it would need to be proven to the court that the actions of this person caused an injury in the person bringing the legal action. The burden will be on the plaintiff to prove causation between the actions of the defendant and their injuries. If this is proven then the plaintiff will further need to prove damages, which could be in the form of lost wages from missed work, past due and prospective medical bills, and potentially even the pain and suffering that accompany many cases of COVID-19.

With the pandemic presenting such a new set of facts, nothing is black and white here. What if a person is aware or has reason to believe that they have COVID-19 and puts themselves in a situation that allows for transmission,yet they did so because they felt they had no choice? An example would be a worker in a store who informs management that they are ill and is told to come to work anyway or they risk losing their job. Is this a shared liability between the employee and their employer? Is the employee liable because they could have exercised their option to stay home even if it meant losing their livelihood? This is simply one of many potential scenarios that will blur the lines between traditional tort law concepts and the realities of our times.

About Aron Solomon

Aron Solomon is the Senior Digital Strategist for NextLevel.com and an Adjunct Professor at the Desautels Faculty of Management at McGill University.

Aron was the founder of LegalX at MaRS Discovery District in Toronto, one of the world's first legal technology accelerators, and was elected to Fastcase 50 in 2015, which recognizes the world's leading legal innovators, Aron regularly consults for large global corporations, law, and accounting firms.