The horrific consequences of the Jan. 6 assault on the Capitol continue to mushroom this week. On Tuesday, it was reported that Democratic New Jersey Rep. Bonnie Watson Coleman would have to undergo monoclonal antibody therapy after contracting COVID-19 following being trapped with maskless members of the House Republican caucus during last week’s Capitol riot. Fellow Democrats Pramila Jayapal and Brad Schneider have also tested positive for COVID-19. It’s quite likely that they were exposed during the lockdown, when some of their GOP colleagues refused to wear masks despite being huddled together in a confined space for hours. This video shows some of these Republican members seemingly mocking Democratic Rep. Lisa Blunt Rochester, who was offering them this simple protection. These representatives—identified as Marjorie Taylor Greene, Andy Biggs, Scott Perry, Michael Cloud, and Markwayne Mullin, all Republicans—could not be bothered to comply with this simple and effective public health measure. As Watson Coleman put it in an op-ed in the Washington Post on Tuesday, “while we might have been protected from the insurrectionists, we were not safe from the callousness of members of Congress who, having encouraged the sentiments that inspired the riot, now ignored requests to wear masks.”
Those infected should sue their colleagues for their physical and mental injuries, which we must hope are not serious. (Watson Coleman is 75. Her symptoms are mild so far, but she is a cancer survivor.) They have a strong case. And they need to send a message about the need to act responsibly during a pandemic, since it doesn’t appear that anything else will do the trick. As with the soon-to-be former president who inspired last week’s attack, it’s past time for bad actors to suffer consequences.
On Jan. 10, Dr. Brian Monahan, the attending physician for Congress, sent a memo urging all members to be tested for COVID-19 because they “may have been infected by another occupant [of the confined space] with coronavirus infection.” Of course, we don’t know which of the unidentified possible COVID vectors might have infected Jayapal, Watson Coleman, and Schneider. Doesn’t that make the case impossible to win?
No. This could amount to a classic instance of alternative liability, a rarely applicable legal rule that might apply in this case. The rule comes from an old California case, Summers v. Tice, involving three hunting buddies. After Charles A. Summers flushed out a quail during a hunting trip, Harold W. Tice and the third man, Simonson, aimed and fired at the bird—but hit Summers in the eye, causing serious injury. Summers sued both Tice and Ernest Simonson, but had a major problem: He couldn’t prove which of them had fired the shot that injured him. Under then-prevailing law, he would not have succeeded against either of them, because he couldn’t prove it was “more likely than not” (the standard of proof in civil cases) that one or the other had fired the wounding shot. Each of the defendants was equally, not more, likely to have harmed Summers.
This didn’t seem fair to the court. After all, both Tice and Simonson had acted at least negligently (carelessly), and it was clear that one of them had caused the injury. So the California Supreme Court did something creative: It shifted the burden to the defendants to prove that it was the other guy who had deprived Summers of his vision. If they were unable to do so, they would both be held responsible.
This 1948 case established the principle, now generally accepted, that when two or more defendants act negligently, but only one of them could have injured the plaintiff, they’re all liable—unless they can prove they didn’t cause the harm. Subsequent cases have made clear that the alternative liability rule isn’t limited to cases involving just two defendants. As long as all of them are members of the group that injured the plaintiff, they’re potentially on the hook.
The current, perhaps still-growing cluster of infections fits this model of liability well enough to suggest itself as a final exam in a torts class. It features multiple infected representatives and a known group of likely “vectors,” all of whom acted worse than negligently. This looks like a case of recklessness, which the law defines as “conscious disregard of a known risk.” The distinction is important because defendants can be liable for punitive damages in that case. (Such damages go beyond compensating injured parties, and can amount to multiples of the actual damages suffered.) Recall that current House rules require representatives to wear masks even while in the large House chamber. House Speaker Nancy Pelosi has tried, with limited success, to enforce this sensible mandate approved by the Centers for Disease Control and Prevention; those who violate it are willfully exposing others to risk, and the situation was much worse in the close confines of the small rooms in which the representatives were sheltering in place. The refuseniks know this, so their conduct during the insurrection is textbook recklessness.
I’m not suggesting that the case is a slam dunk, even given the Summers rule. The defendants would of course try to sow doubt about the source of infection. There’s some evidence of at least one of the infected representatives, Jayapal, exposing herself to some level of risk by not wearing a mask herself. (But that was in the much larger House chamber, with what looks like appropriate social distancing, and at the start of a confusing and chaotic attack.) Yet given the timing of the positive tests of these three representatives, the closeness of the space, and the duration of the lockdown, the infected group looks to have a strong case—especially given Monahan’s memo warning that at least one person present was infected.
This would be a great case for the affected representatives to bring to trial without settling, because the likely prospect of punitive damages creates a vehicle for accountability and—I’ll say it—necessary public shaming. Let these heedless representatives get on the stand and try to defend their conduct.
Greene, the newly elected Georgia representative, mask opponent, and QAnon cheerleader, has trumpeted her stance with the misappropriated slogan “My body, my choice.” Yes, but this maddeningly irresponsible choice appears to have had entirely predictable, quite possibly dangerous consequences. She and the other bad actors might not care. If they’re made to pay millions in damages, that might finally change.
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