Strict Liability

Strict liability is imposed without regard to a defendant’s negligence or intent to cause harm when the actions of the defendant cause physical harm to the plaintiff. Strict liability only applies to “abnormally dangerous activities” involving a foreseeable and highly significant risk of physical harm even when reasonable care is exercised, and the activity is not one of common usage. ²² Strict liability has been imposed for blasting, wild or abnormally dangerous animals, storage of hazardous waste, radioactive emissions, and similar dangerous activities.

Courts are unlikely to apply strict liability to COVID-19, even though it is a deadly and highly contagious disease. In the leading case of Doe v. Johnson, ²³ the plaintiff alleged that the defendant wrongfully transmitted HIV to her through consensual sexual intercourse. The district court judge, applying Michigan law, held that there was no precedent for extending strict liability to this case. The court’s opinion emphasized that Michigan cases limited strict liability to such hazards as blasting and storing inflammable liquids, the risks of a sexually transmitted infection could be reduced by the exercise of reasonable care, and sexual activity is not an inherently dangerous activity.Reference Sentome ²⁴

Negligence

Plaintiffs bringing lawsuits for negligence are required to prove that the defendant breached a duty to the plaintiff, which caused the plaintiff to suffer damages. Each of these four traditional elements: duty, breach, causation, and damages, raises distinct issues in the context of take-home exposure cases against employers for COVID-19.

Duty. The essence of a personal injury lawsuit based on negligence is that the defendant breached a duty to the plaintiff by failing to exercise reasonable care under all the cir-cumstances. ²⁵ In take-home exposure cases, the defendant-employer is alleged to have breached a duty to their employee’s family member -- an individual without an employment relationship with the employer, in a setting beyond the workplace, and involving a person whose identity or even existence might not have been known to the defendant. Thus, the initial question is whether an employee’s family member is a foreseeable plaintiff to whom the employer owed a legal duty.

In the leading case of Kesner v. Superior Court, ²⁶ Johnny Blaine Kesner, Jr.’s uncle, George Kesner, an employee of Pneumo Abex, LLC, was exposed to high levels of asbestos in the course of his work. Johnny Kes-ner stayed at his uncle’s home about three days per week for six years and alleged that he was exposed to asbestos through dust on his uncle’s clothing, and that this exposure caused him to contract peritoneal meso-thelioma, from which he died. ²⁷ The Supreme Court of California held that employers have a duty to prevent the secondary exposure to asbestos of their employees’ family members, and take-home exposure via the employees’ bodies and clothing was foreseeable.

In the context of COVID-19, the plaintiff would have to prove that inadequate protections in the workplace and the transmissibility of SARS-CoV-2 made it foreseeable that employees exposed on the job would infect their family members. Because SARS-CoV-2 could be spread to numerous other potential plaintiffs besides family members, defendants would likely raise the possibility of unlimited liability as a reason to reject any take-home liability. The court in Kesner specifically addressed this issue by holding that an employer’s duty only extends to the members of a worker’s household. “By drawing the line at members of a household, we limit potential plaintiffs to an identifiable category of persons who, as a class, are most likely to have suffered a legitimate, compensable harm.” ²⁸

Breach. The next step is to determine whether the defendant breached the applicable standard of care. Testimonial and documentary evidence of OSHA violations established through enforcement or adjudication are inadmissible in a personal injury case as evidence of the employer’s negligence, ²⁹ but applicable OSHA standards are generally admissible as evidence of the standard of care.Reference Rothstein ³⁰ OSHA standards may be admissible even where the plaintiff was not an employee, such as the driver of an automobile, a visitor touring the workplace, or a safety inspector. ³¹ Thus, OSHA standards, including those requiring employers to supply necessary personal protective equipment, would seem to be admissible in take-home liability cases to prove the duty owed to the employee and the employee’s foreseeable family members. There are no cases on whether OSHA guidance documents are admissible, and this issue is important because during the Trump Administration there were no federal OSHA standards promulgated for COVID-19, only non-mandatory guidance documents. ³²

The admissibility of an OSHA standard in personal injury litigation depends on the state common law used in negligence cases. In 33 states, an employer’s failure to comply with an applicable OSHA standard constitutes “some evidence” of negligence.Reference Rothstein ³³ The evidentiary effect of “some evidence” of negligence within these jurisdictions varies. The evidence may give rise to an inference of negligence, establish prima facie negligence, or create a rebuttable presumption of negligence. ³⁴ In 14 states and the District of Columbia, noncompliance with an applicable OSHA standard establishes negligence per se. ³⁵ The effect of negligence per se is to establish a breach of the relevant duty, but a plaintiff is still required to prove causation and damages, and the defendant may assert any defenses. ³⁶ OSHA standards are generally inadmissible in three states,Reference Rothstein ³⁷ but they might be admissible under certain circumstances. ³⁸

Causation. For liability to be imposed, the negligent conduct of the defendant must be a factual cause of the harm sustained by the plaintiff. ³⁹ With take-home exposure cases there are two parts to causation. First, the negligence of the employer must be a cause of the employee’s infection. Because SARS-CoV-2 is so prevalent in the community it might be asserted that the employee could have been infected in other ways, such as in public places, on public transportation, or at public or private gatherings. Second, the family member’s infection must have been caused by exposure to the infected employee. Here again, the family member also could have been infected by exposure to other individuals.

Causation is more problematic for take-home COVID-19 than asbestos disease because coronavirus exposures are more common, and in more settings, than asbestos exposures. Nevertheless, the law does not require the plaintiff to prove the exact sequence of the parties’ exposures.^{40 “}And whether the defendant’s negligence consists of the violation of some statutory safety regulation, or the breach of a plain common law duty of care, the court can scarcely overlook the fact that the injury which has in fact occurred is precisely the sort of thing that proper care on the part of the defendant would be intended to prevent, and accordingly allow a certain liberality to the jury in drawing its conclusion.”Reference Keeton ⁴¹ Public policy concerns, including “moral blame, preventing future harm, burden, and availability of insurance” ⁴² also might be considered in deciding whether causation will be satisfied.

Damages. The final element of a plaintiff’s take-home exposure case is the least difficult conceptually. The plaintiff must prove that the defendant’s negligence resulted in a legally recognized harm. In take-home asbestos cases courts have applied traditional principles of tort damages, although many of the appellate cases have been decided on the issue of whether the jurisdiction recognizes the actionability of such claims rather than the permissible damages. ⁴³ Take-home COVID-19 cases almost certainly would be brought by employees’ family members who became seriously ill or their estates in the event of death. Successful plaintiffs should be able to recover a range of compensatory damages, including lost income, medical expenses, and pain and suffering. Punitive damages also might be recoverable under state common law if the employer’s conduct was willful, wanton, or evidenced a reckless disregard for the rights of the employees or their family members. ⁴⁴

OSHA Protections

By any measure, the federal Occupational Safety and Health Administration (OSHA) failed in its efforts to protect workers during the first year of the pandemic.Reference Michaels and Wagner ⁴⁵ Six months into the pandemic, despite receiving nearly 10,000 complaints from employees, ⁴⁶ OSHA had cited only 85 employers with a total of $1.2 million in penalties.Reference Hussein ⁴⁷ For example, OSHA assessed civil penalties of merely $15,615 to meatpackers JBS Foods, Inc., of Greeley, Colorado, and $13,494 to Smithfield Packaged Meats of Sioux Falls, South Dakota, after a total of 1,000 workers at those facilities contracted COVID-19, resulting in 94 hospitalizations and 10 deaths. ⁴⁸ It is unlikely that these paltry penalties assessed by OSHA, which are being contested by the companies, will have a deterrent effect because both meatpackers are multi-billion dollar enterprises.Reference Scheiber ⁴⁹

Although the prompt issuance of an emergency OSHA standard prescribing employer duties to prevent exposure to SARS-CoV-2 likely would have reduced viral transmission,Reference Rolfsen ⁵⁰ during the Trump Administration, OSHA declined to promulgate such a standard. ⁵¹ The guidance documents for employers issued by OSHA ⁵² and the CDC ⁵³ during this time were mere suggestions or recommendations. Among other things, employers were advised to “encourage” sick employees to stay home, “consider” conducting daily health checks, and “encourage” workers to wear a cloth face covering. There was no requirement that employers adopt these policies nor require their employees to follow them. Only OSHA has the regulatory authority to mandate compliance, and despite thousands of deaths from COVID-19 attributable to workplace exposures, OSHA failed to undertake emergency rulemaking or vigorous enforcement.Reference Rothstein and Irzyk ⁵⁴

Workers’ Compensation

Employees who become ill from occupational exposures are usually entitled to workers’ compensation pursuant to state law. If the illness is an “ordinary disease of life,” however, then the employee must prove that the disease was caused by workplace exposures. In some jurisdictions, the courts are reluctant to award compensation for occupational illnesses, even though the general rule is that if employees develop diseases from a relatively sudden and unexpected exposure to germs, it is compensa-ble.Reference Larson ⁵⁵ Some employers have contested the workers’ compensation claims for COVID-19, thereby adding financial insult to serious illness for vulnerable workers and their families.Reference Fortin ⁵⁶

To ease the burden of proof for employees sickened on the job by COVID-19, legislative enactments in eight states and executive orders and regulatory policies in nine others make it easier for workers to obtain compensation. ⁵⁷ Although the state laws vary, they most commonly establish a rebuttable presumption that COVID-19 by a health care worker or first responder is the result of occupational exposure.

Immunity

Contrary to the laws making it easier for employees to obtain workers’ compensation benefits for COVID-19, at least 13 states have enacted laws immunizing most or all businesses from personal injury liability for COVID-19 claims.Reference Marr ⁵⁸ Similar proposals have been introduced in Congress, principally by Republicans in the United States Senate. ⁵⁹ The reasoning behind the legislation is that many businesses have been so weakened financially by the pandemic that they could not afford to remain open or reopen if they were subject to liability for COVID-19 or had to purchase expensive liability insurance.

The liability issue promises to be debated vigorously in Congress and state legislatures for the foreseeable future. One possibility for balancing the interests of employees and employers is for liability protection to be available for only small employers (defined by business volume or number of employees). Claims brought against small employers would be paid by a government financed insurance system, thereby permitting timely compensation for the victims of COVID-19 without threatening the solvency of small employers. ⁶⁰