The public health crisis created by the novel coronavirus has spun off myriad related problems—most notably, the accelerating collapse of the national economy. One story that’s not gotten the attention it deserves, though, is what will happen to those who acted irresponsibly during this challenging period. After we’re past the crisis stage of this pandemic, we could see a flurry of court cases on behalf of those sickened or killed through exposures that could have been avoided. To take one dramatic example: What if, for instance, an employer places workers at risk of infection by ordering them to work on-site when there are other, safer alternatives available?
Jerry Falwell Jr., the president of Liberty University in Lynchburg, Virginia, may find himself an unwilling participant in answering that question. In contrast to the approach taken by most universities—send everyone home and move to an online program—Falwell has “welcomed” students returning from spring break and initially told the faculty to return to campus unless they had a sound medical reason to stay away. Although they will now teach online rather than in front of classes, many instructors remain on campus. Those who do, of course, might need to travel to and from their offices, in apparent defiance of Virginia Gov. Ralph Northam’s order for nonessential businesses to shut down. Falwell and those who follow a similar path have set themselves up for possible negligence lawsuits.
Placing people in a dangerous position is the kind of careless—even reckless—behavior that fills first-year torts casebooks. Universities can be liable for failing to safeguard the health and safety of their students and for coercing their employees (faculty and staff) to assume needless risks. While the risk of COVID-19 infection is unavoidable for hospital employees during this pandemic (even if reasonable sanitation measures are followed), there’s no sound reason for a university to defy sensible public health directives by encouraging faculty and students to return to campus. (This is especially true since this return is taking place right after spring break, when it’s a sure thing that at least some students were congregating in massive, unsafe numbers.) Such defiance of public health messaging, as well as the contrary decisions of seemingly all other institutions of higher learning, could add up to compelling evidence of negligent conduct—failing to act like a reasonable person under the circumstances. And a jury that got its hands on such a case might even find that Falwell’s conduct went beyond negligence and was reckless—meaning that it could find that he consciously disregarded a known risk. If so, Falwell and Liberty University could be saddled with punitive damages too, because Virginia, like most states, allows punitive damages for cases involving reckless conduct (but not “mere” negligence). Other employers who present their workers with such choices could be similarly called to account.
Public officials might also be sued for placing people in danger, but these cases are much tougher to win. First, there’s the obstacle of governmental immunity, which rules out some lawsuits against the government from the start and makes others difficult. For instance, the president could not be successfully sued for failing to invoke the Defense Production Act because that’s considered a matter of policy—and such discretionary acts aren’t amenable to suit. But if the act were invoked, and then some simple, negligent act by the government prevented a life-saving treatment from reaching a hospital, the victims might be able to sue under the Federal Tort Claims Act. State law is no less bewildering, in part because each state has its own statute that describes the circumstances (if any) under which the state and its governmental divisions (including localities) can be sued. For instance, the resistance by Florida Gov. Ron DeSantis to ordering a statewide shutdown will predictably increase incidence of COVID-19 infection, but anyone trying to sue the state government for this would have to face a withering gantlet of restrictions imposed by the Florida tort statute—and would likely lose. (The statute contains many exceptions to liability and imposes a damages cap, among many other limitations.)
Another major obstacle to coronavirus transmission lawsuits is the requirement that any litigant prove that the defendant’s action was the likely cause of the infection and subsequent illness or death. With claims against state governmental entities or employers who place workers at risk, that hurdle might prove challenging to clear. A potential claimant generally must trace an injury back to the action that supposedly led to the infection, which might prove difficult since transmission might have occurred by other means. Yet a court might look askance at such an argument in these cases. As one court memorably stated, even where an injury might have occurred without the defendant’s negligence, when that action “greatly multiplies the chances of [harm] to the plaintiff, and is of a character naturally leading to its occurrence,” that will suffice to establish the causal link. This 19th century case, which involved a woman who was injured while falling in a negligently maintained train station, may seem far afield from this situation, but the underlying principles are remarkably similar. Those who act irresponsibly, fail to act, or negligently misstate the science are increasing the risk. They shouldn’t then be able to rely on lack of proof of direct causation when the very risk they propagated materializes.
By contrast, claims against particular individuals for passing the virus to others would be very unlikely to succeed absent unusual circumstances. For instance, someone filling a prescription next to a beach full of spring breakers (perhaps in Florida) would find it impossible to pinpoint which, if any, of the partying young adults infected her. (And how would she track them down, anyway?)
Tort law is a second-best, after-the-fact approach to this terrible crisis. The better way to deal with COVID-19 is through a combination of clear public health messaging and (only as needed) law enforcement to blunt the risk that the partygoers, public officials, employers, and others create in the first place. That’s of course the better outcome anyway: fewer transmissions and a flattened curve of infection. But given the unwillingness of some public officials and private actors, from the president down to Jerry Falwell, to consistently do the responsible thing, tort liability is standing by, as always, to pick up the pieces—and to deter the next generation of bad actors from proceeding with business as usual.
