The COVID-19 pandemic has had immense global effects on employees, businesses, and consumers. In the wake of this pandemic, there have been many questions concerning the level of potential liability that businesses could face as a result of wide-spread COVID-19 cases.
Businesses fear they may face a potential flood of litigation if they reopen during the pandemic. This could lead to even more financial strain for organizations that have already faced significant loss. In response, the Federal Government and individual states have debated whether to provide businesses with protection from civil liability. However, this has created concern over whether consumers will have any legal remedy if they contract COVID-19 at a particular business or establishment. Similarly, employees who contract COVID-19 while at work must determine what remedies are available for their injuries.
As the nation continues to adjust to new realities, the law continues to evolve in order to address these concerns. There are new developments on this issue each day. This FAQ aims to provide reliable and national information that is intended to help victims understand their legal rights during this difficult and unfamiliar time.
Legal FAQ’s Regarding COVID-19 and the CORONA Virus
Q: If I believe I contracted COVID-19 at a business where I was not an employee, do I have a potential claim?
A: If you believe you have contracted COVID-19 from a business, the first step is to determine whether you can establish a claim. Your claim will likely be based on the theory of negligence, the basis for most personal injury suits, or premises liability. A business is negligent if it fails to exercise reasonable care under the circumstances. To establish a claim, you must prove that the business owed you a duty, that it breached this duty, that its actions caused your injury, and that you are entitled to damages. However, the causation element may be difficult to prove. To establish causation, you will have to prove that you contracted the virus at the defendant’s establishment. It may be hard to pinpoint exactly where you contracted the virus because COVID-19 is wide-spread and extremely contagious. Many states have also enacted liability shields for businesses and health care organizations that may prohibit your claim. Understanding how these issues may impact your claim will help you to determine the best way to proceed. Each of these considerations are explained in further detail below.
Q: If I believe I contracted COVID-19 from the business where I work, can I bring a claim?
A: In most cases, employees are barred from suing their employer for injuries that occur in the workplace. These civil claims are typically prohibited because workers’ compensation is the exclusive remedy for most businesses. Under the workers’ compensation system, an employee can receive wage replacement and medical benefits. Arizona’s Workers’ Compensation Frequently Asked Questions Page explains that workers’ compensation is a “no fault system.” Employees are entitled to benefits even if they contributed to causing their injury or illness. However, damages for pain and suffering are not available in workers’ compensation plans. In order to receive workers’ compensation benefits, you must be an employee for a business that carries workers’ compensation insurance, you must have suffered a work-related injury or illness, and you must meet your state’s deadline for reporting the injury and filing a claim for compensation.
Most states, like California, require all employers to have workers’ compensation insurance. This insurance provides basic benefits such as medical care, disability benefits, death benefits, job displacement benefits, and return-to-work supplements. Rules regarding eligibility and recoverable amounts vary from state to state. For example, The State Board of Workers Compensation in Georgia specifies that employees can receive two-thirds of their average weekly wage, up to $675.00 per week. Majority states, including New York, Pennsylvania, Florida, and North Carolina, have helpful webpages that explain state-specific rules for workers’ compensation claims. If you plan to file a workers’ compensation claim, you should check your state’s specific rules and requirements.
In response to COVID-19, some states have lowered the bar for essential workers to secure workers’ compensation benefits. For example, California declared that essential workers who contract COVID-19 are presumed to have gotten infected on the job. Under this declaration, the employer bears the burden to prove that the worker contracted the virus elsewhere. Other states, like Illinois and Kentucky, have implemented broader orders which create a presumption that workers contracted COVID-19 on the job. Workers at grocery stores, banks, child-care centers, shelters, and laundries are all covered under these orders. If you contracted COVID-19 while at work, it will be helpful to determine whether your state has lowered the bar for workers’ compensation benefits. If you are unsure about the standards and rules in your state, you should speak with a lawyer. Coronavirus lawyers are experts on this topic and can explain your rights and any remedies that you may be entitled to for your injuries.
Q: Is it possible to sue my employer outside of the workers’ compensation system?
A: In some cases, an employer’s deliberate failure to protect workers from COVID-19 has lead to litigation. Many states allow employees to sue outside of the workers’ compensation system when the injury or sickness results from an employer’s intentional wrongdoing. During the COVID-19 pandemic, many have claimed that they contracted the virus because their employer deliberately ignored basic safety protocols. However, states have imposed specific limitations on this exception. For example, in Acevedo v. Consolidated Edison Co. of New York, Inc., the court held that in New York, the intentional-wrongdoing exception only applies when the employer’s actions were specifically intended to harm the employee. Mere knowledge of the risk is not sufficient. This interpretation also applies in Arizona. This means that an employee must prove that their employer meant for its employee to contract COVID-19. Florida allows employees to bring a claim if the employer knew its actions were “virtually certain to result” in injury or death. Texas allows an employee’s survivors to bring suit if the employer’s “gross negligence” caused the employee’s death. A New Jersey case held that the exception can apply when there was “substantial certainty” that the employer’s actions would result in injury or death. Thus, an employee’s ability to sue outside of its state’s workers’ compensation statute depends on the specific law within the state.
Q: What do I have to establish to prove a claim?
A: Many personal injury COVID-19 claims will be based on the theory of negligence. To establish a negligence claim, you must establish four elements: duty, breach, causation, and damages. Under case law, a defendant is negligent if it breaches a legal duty. This breach must also cause an injury. The plaintiff can prove duty and breach by showing that the defendant’s actions fell below the applicable standard of care and increased the risk to the plaintiff.
In negligence claims involving COVID-19, a court may examine wither the defendant complied with federal safety regulations. This inquiry may help to determine whether the defendant met the standard of care under the circumstances. For example, in Rolick v. Collins Pine Co., the United States Court of Appeals held that OSHA regulations were relevant in examining whether the defendant met the standard of care. The CDC and OSHA have issued guidelines for businesses to follow during the COVID-19 pandemic. To establish a breach of care, you may need to show that the defendant failed to take the appropriate precautions and did not comply with these guidelines. You may also need to prove that the defendant did not act reasonably under the circumstances. What is “reasonable” conduct may hinge on what other businesses or heath care organizations would deem to be reasonable to prevent the virus from spreading.
Once duty and breach are established, the plaintiff must prove that the defendant’s actions actually caused the resulting injury. Under this requirement, you would need to illustrate that “but-for” the defendant’s breach of care, you would not have contracted COVID-19. If you believe that you contracted COVID-19 at a particular business, you will need evidence to prove that you did not contract the virus elsewhere. Lastly, you will need to prove that you suffered damages from the virus. Damages can be compensatory (monetary) or non-compensatory. Negligence can only be proven if duty, breach, causation, and damages are all clearly established.
Most states also have premises liability statutes that establish liability for owners of real property. Duties under these statutes vary, depending on the reason someone is present on the property. Some premises liability laws hold that business owners owe a heightened duty to keep a property safe for business invitees. A business invitee is someone who has permission to be on the premises for a commercial benefit. For example, The Supreme Court of Vermont held that a business has a duty to keep its premises safe and to protect invitees from unreasonable danger. An unreasonable danger may exist if the business does not follow CDC and OSHA regulations to protect against the virus.
Premises liability laws may also create duties to warn about dangerous conditions and to inspect for hidden dangers. Premises liability claims could arise if business owners fail to protect customers, warn customers of potential risks, or conduct reasonable inspections to identify whether any dangerous condition exists. To establish a premises liability claim, you can present evidence that the business failed to protect you from COVID-19. The business may be liable if it failed to warn of the virus, check to ensure that employees and customers did not show symptoms, or properly sanitize the premises. If you believe that you contracted COVID-19 while at a business, speaking with a coronavirus lawyer may help to determine whether the business breached its duty.
Q: What are the potential defenses a business may raise in response to a claim?
A: There are a few different defenses that a business could raise in response to a negligence claim. For example, a business could raise a defense that causation has not been established. Causation can be established by proving that the defendant’s breach of care more likely than not caused the injury. The plaintiff would need to prove that they contracted COVID-19 on the business’s property. However, it can be very difficult to prove exactly where the plaintiff contracted the virus because many people do not show symptoms of the virus for up to fourteen days. Furthermore, individuals with no symptoms can infect others. This makes it increasingly difficult for a plaintiff to prove that they contracted the virus at a particular location. If causation is not established, the negligence claim will ultimately fail.
In one case, the plaintiff could not prove that his wife contracted H1N1 influenza at the defendant’s hospital in part because the virus was present in the community at large. Mere speculation that she contracted the illness at the hospital was not enough. Similarly, another court held that a “mere possibility alone” was not enough to prove that the defendant caused the plaintiff to contract Valley Fever because it was widespread throughout the population. A business may also claim that causation is not established because its actions did not cause the resulting injury. For example, an appellate court held that a plaintiff who contracted Ebola had not established causation because she failed to prove that she would not have contracted the illness if the defendant implemented different policies. In the context of COVID-19, a business may claim that the plaintiff would have contracted the virus even if the business took additional precautions under the circumstances.
A business may also claim that the plaintiff understood that going out into public during a pandemic could cause them to contract the virus. Case law has established that this “assumption of the risk” defense is applicable where a plaintiff has knowledge of the risk of a danger, appreciates the risk, and voluntarily exposes itself to the risk. The COVID-19 pandemic is widespread and is objectively known to exist nation-wide. It would be difficult for a plaintiff to prove they were unaware that going out into public during a health crisis could increase their risk of contracting the virus. A plaintiff may be able to claim, though, that they did not assume the risk because they expected the business to protect them from the virus on its premises. If an assumption of the risk defense is successful, your claim for damages will fail.
Many states have also enacted various forms of “liability shields” for health care organizations and businesses. Except in cases that involve gross negligence or willful conduct, these liability shields may provide defendants with immunity from civil liability. Federal lawmakers are also debating whether to enact such liability shields. If you are considering whether you have established a claim, it is important to check your local legislation to determine whether liability shields have been implemented and whether they may impact your claim. For more information on liability shields, see below.
Q: I have a loved one who died of COVID-19. Do I have a potential claim?
A: If you have a loved one who died of COVID-19, you should refer to your state’s wrongful death statute for information on whether you can bring a claim. A wrongful death claim exists when someone dies as a result of another’s wrongdoing. First, you should determine whether you can trace the illness back to a particular business. If you cannot prove that a particular business caused your loved one to contract COVID-19, your claim may fail. You should also verify whether your state has enacted liability shields that may prohibit your claim. These issues are explained in greater depth in other sections within this FAQ.
Each state has a unique wrongful death statute that will determine whether you can bring a claim. The statutes and laws governing wrongful death suits in each state govern who can bring a claim on behalf of the decedent, when the claim must be filed, and what damages are available. For example, the Illinois wrongful death statute specifies that a personal representative must bring the claim. A personal representative is a person or entity that is responsible for managing the decedent’s estate. In Illinois, a wrongful death claim benefits the decedent’s surviving spouse and next of kin. Kentucky’s wrongful death statute also requires a personal representative to bring the claim. The recovered damages go to the surviving spouse, surviving children, or surviving parents.
Some states do not require a personal representative to file the claim. In Missouri, a surviving spouse, surviving children, surviving parents, or surviving siblings may be entitled to bring a wrongful death suit. Arizona’s wrongful death statute specifies that a surviving spouse, a surviving child, a surviving parent, or a personal representative can bring a wrongful death suit.
If you plan to file a wrongful death suit, you will need to file it within the allotted time limit. This time limit is referred to as the “statute of limitations”. Each state sets this time limit, often within the wrongful death statute. For example, both Illinois and Arizona have a statute of limitations of two years from the date that the decedent passed. If you do not file your claim before the statute of limitations runs, the court will not hear your claim.
Q: I’ve heard a lot about “liability shields.” What are they and how could they impact my claim?
A: As the COVID-19 pandemic continues to have immense effects on businesses and health care providers, the Federal Government and individual states have been searching for ways to control their exposure to liability. Aside from risking their own health, health care providers face financial risk from a potential increase in liability claims stemming from their treatment of COVID-19 patients. Many businesses that have been closed fear that reopening could expose them to liability claims from consumers and employees who claim to have been exposed to the virus at their business. In response to these concerns, federal lawmakers are currently debating whether to enact liability shields to protect companies from a potential flood of lawsuits.
The Federal Government has already implemented some limits on liability for health care providers. The Coronavirus Aid, Relief, and Economic Security (CARES) Act limits liability for volunteer healthcare providers under certain circumstances during the COVID-19 pandemic. Section 4216 specifies that volunteer workers are protected if they act in good faith and provide care within their licensure. The Public Readiness and Emergency Preparedness (PREP) Act of 2005 provides immunity for activities involving “countermeasures.” Specifically, this liability shield protects vaccine manufactures, distributors, and other persons who are authorized to administer countermeasures in the event of a public health emergency.
These shields provide important immunities for certain healthcare providers. However, they are limited in scope. State governments have been inconsistent in granting immunity to healthcare providers. Some states, though, have statutes in place that automatically provide protection during state emergencies. For example, a Virginia statute shields health care providers from liability for injury or wrongful death while providing care during a state or local emergency. Virginia’s statute provides immunity when providers are not able to meet normal standards of care due to a shortage of medical resources. Louisiana has a similar statute, specifying that health care providers are not civilly liable for the death or injury to any person during a public health emergency. In both states, immunity does not apply in cases that involve gross negligence or willful misconduct.
Other states have recently implemented executive orders in response to COVID-19. For example, the governor of Illinois issued a civil immunity executive order that provides broad civil immunity to health care workers and hospitals during the COVID-19 pandemic. The order applies to heath care facilities, health care providers, and volunteers who are rendering assistance during the pandemic. Deaths and injuries caused by gross negligence or willful misconduct are not included. Other states such as New Jersey and New York have also issued executive orders that provide immunity protections for health care professionals.
Many fear that liability shields may disincentivize businesses from taking proper precautions to protect its employees and consumers. Nonetheless, some states have enacted legislation to protect businesses from potential liability as long as they comply with government guidelines. For example, Utah’s governor signed legislation that offers immunity to businesses. The governor wanted to ease their fears of facing frivolous negligence lawsuits. Under the law, business owners are immune from civil liability for damages resulting from exposure of an individual to COVID-19 on their property. The immunity provided under the legislation does not apply in cases of intentional infliction of harm, willful misconduct, or reckless infliction of harm.
North Carolina’s COVID-19 Recovery Act also provides liability shields for essential businesses. Provision 4.14(a) provides essential businesses, including non-profits, educational institutions, pharmacies, grocery stores, hardware stores, and banks with immunity from civil liability for injury or death due to COVID-19. Similar to Utah’s legislation, though, immunity is not available under Section 4.14(a) in cases that involve gross negligence, recklessness, or intentional infliction of harm. Wyoming and Oklahoma have also enacted similar legislation to protect businesses from exposure to liability during COVID-19.
If you have a claim against a business or health care provider, you must determine whether your state has enacted liability shields. If so, your case will be prohibited unless it involves gross negligence, recklessness, intentional harm, or willful misconduct. Typically, these heightened standards require extreme deviations from the standard of care or a showing that the business voluntarily disregarded its duty to reasonably protect against spreading the virus at its establishment. If you are unsure whether your state has enacted liability shields, or if they will bar your claim, you should speak with a COVID-19 lawyer. Coronavirus lawyers are well equipped to counsel you on the strength of your case and the specific law within your state.
Q: I went to the hospital and contracted COVID-19. Do I have a potential claim?
A: In response to the COVID-19 pandemic, most states have enacted legislation to protect health care providers and facilities from a potential flood of litigation. Many health care providers risk their health on a daily basis to care for ill patients. States want to ensure that these providers have the necessary legal protections that allow them to provide the best care possible under extenuating circumstances. Thus, most states have provided health care organizations with immunity from civil liability in all cases that do not involve gross negligence or willful misconduct. If your state has enacted liability shields for health care providers, your claim may be prohibited. It would be beneficial to seek a consultation at a coronavirus law firm. Coronavirus lawyers are experts in their field and can examine the strength of your claim and whether it can be brought. For more information on health liability shields, see “I’ve heard a lot about ‘liability shields.’ What are they and how could they impact my claim?” above.
Q: I’m a health care worker who contracted COVID-19. Do I have a potential claim?
A: If you are an employee for a health care organization who contracted COVID-19, your claim may be barred by workers’ compensation statutes. Each state has unique rules and requirements for workers’ compensation benefits. Some states have lowered the bar for essential workers to secure workers’ compensation benefits during COVID-19. If your state has lowered the bar, you will not have to prove that you contracted COVID-19 while at work. For more information on workers’ compensation benefits, see “If I believe I contracted COVID-19 from the business where I work, can I bring a claim?” above.
Q: How has COVID-19 affected nursing home facilities?
A: According to the CDC, nursing home populations face a high risk of exposure to COVID-19. This is due to their congregate nature and because older adults with underlying medical conditions are more prone to contracting the virus. COVID-19 can spread more easily through these congregate facilities because many people live within a confined environment. Forbes reported that .62% of the United States population reside in nursing homes and assisted living facilities. However, in the forty-three states that submit such data, 42% of all COVID-19 related deaths have taken place in nursing homes and assisted living facilities.
In response to the devastating effects COVID-19 has had on nursing homes and long-term care facilities, NPR reported that the Centers for Medicare and Medicaid Services ordered states to inspect nursing homes for proper infection control. Not all states have completed these inspections. For example, NPR reported that as of June 1, 2020, West Virginia only completed 11% of the required inspections. The CDC has also provided recommendations for core practices that nursing homes should implement during and after the COVID-19 pandemic. Individual states are still considering ways to protect these vulnerable populations from COVID-19.
Q: How have the states responded to COVID-19 in nursing homes?
A: In response to the COVID-19 pandemic, individual states have implemented different policies for nursing homes and long-term care facilities. In Michigan, the governor signed an executive order requiring nursing homes and care facilities to accept COVID-19 patients from hospitals. This policy dew heavy criticism. Many feared that it would negligently expose vulnerable populations to the virus. The executive order has been updated twice in response to criticism and ongoing concerns regarding the spread of COVID-19. The current executive order specifies that COVID-19 patients can only be discharged to nursing homes that are capable of safely isolating the resident. The order is in effect through June 17, 2020.
The governor of New York also issued a controversial order on March 25, 2020. This order required nursing homes to admit residents regardless of their COVID-19 status. The order also prohibited facilities from testing patients prior to admission. On May 10, 2020, the governor updated the executive order. The new order requires nursing homes to test their staff two times a week and prohibits hospitals from discharging COVID-19 patients to nursing homes, unless they are negative. However, many feared that this update came too late. Nursing homes throughout the state had already loss many residents from contracting the virus. On the other hand, Florida implemented protective regulations to protect nursing home residents and staff early on. Florida’s governor signed an executive order on March 15, 2020 that prohibited hospitals from discharging infected patients into nursing home facilities.
There have also been strict limitations on visitation within nursing home facilities. In early March, the Federal Government issued guidance that prohibited non-essential visits. Specifically, the Centers for Medicare and Medicaid Services (“CMS”), banned all visitors except for health care workers and family members of residents in an end-of-life situation. The ban also prohibited group activities within nursing homes. Under this guidance, individual states were still allowed to enact a stricter ban. Nursing homes in these states were not cited for being out of Federal compliance while following state specific guidelines.
On May 18, 2020, CMS released guidelines for reopening nursing homes, providing parameters for testing and visitation. CMS announced that states will have the discretion to determine how to implement the guidelines because COVID-19 has affected many communities differently. However, federal authorities are urging governors to exercise extreme caution in reopening nursing homes. Specifically, CMS recommends that visitation should not resume until all residents and staff have tested negative for twenty-eight consecutive days. For more information on the guidelines, CMS provides this FAQ Page.
Q: Have nursing homes and long-term care facilities been granted protection from civil liability for COVID-19 related claims?
A: Due to the devastating impact COVID-19 has had on nursing homes and long-term care facilities, many states have taken action to protect these facilities from overwhelming liability. Many believe that these liability shields will leave families without any legal remedy for the passing of their loved one while in a nursing home. However, individual states believe that these facilities need protection so health care providers can focus on treating patients without worry of facing a lawsuit down the line. For example, Massachusetts enacted a law to protect the nursing home industry from liability in cases that do not involve gross negligence or willful conduct.
According to the New York Times, other states including Michigan, Kansas, Illinois, Arizona, Hawaii, Rhode Island, Vermont, and Connecticut have implemented executive orders that provide limited immunity for health care facilities, including nursing homes. Other states, including New York, New Jersey, North Carolina, Utah, and Wisconsin have also passed liability shields for nursing homes. The New York Times reported that nursing homes in other states, including California, Florida, and Pennsylvania are advocating for similar protections.
Q: My loved one contracted COVID-19 while in a nursing home. What defenses could the nursing home raise?
A: If your loved one died from COVID-19 while in a nursing home, you may have a claim for damages. However, there are potential defenses that the nursing home may raise. If you live in a state that has provided nursing home facilities with liability shields during the COVID-19 pandemic, they may defeat your claim. If your claim involves gross negligence or willful misconduct, though, liability shields may not cover the defendant’s conduct. You may be able to prove gross negligence if the nursing home facility voluntarily disregarded safety protocols and knew that its conduct could spread the virus within its facility. For more information on liability shields for nursing homes and long-term care facilities, see “Have nursing homes and long-term care facilities been granted protection from civil liability for COVID-19 related claims” above.
If your claim is not prohibited by liability shields, you may be able to establish a wrongful death suit. Typically, these suits are based on a defendant’s negligence or intentional wrongdoing. Negligence requires a showing of four elements: the existence of a legal duty, a breach of that duty, a causal link between the breach and resulting injury, and damages. Due to the nature of COVID-19, the causation element may be hard to prove in most negligence claims. However, cases against nursing homes may not face this obstacle. Residents of nursing homes normally do not leave the facility and therefore could not have contracted the virus elsewhere. You may easily be able to prove that your loved one contracted the virus at the specific nursing home. Due to this, nursing homes would likely not be able to raise a defense that causation is not established.
Q: How much money could I get if I establish a claim?
A: If you are able to establish a claim, a judge or jury will decide what monetary damages are available. Most times, damages from personal injury or wrongful death suits are compensatory. These damages are intended to make the injured party whole again and can include economic and noneconomic considerations. Economic damages are measurable losses such as medical expenses and lost wages. Noneconomic damages are subjective, non-monetary losses such as pain and suffering and emotional distress.
For example, Arizona calculates personal injury damages based on the nature of the injury, current and future pain and suffering that has resulted from the injury, present and future medical expenses, present and future lost wages, loss of enjoyment of life, and loss of companionship. You cannot recover damages for any physical or emotional condition that existed prior to the defendant’s wrongdoing. However, you may recover for any damages resulting from any pre-existing condition that the defendant’s actions made worse.
For a wrongful death suit in Arizona, you may be entitled to damages resulting from the lost of companionship or affection, present and future pain and suffering, present and future loss of income, funeral and burial expenses, and any medical expenses for the injury that resulted in the death.
Punitive damages may also be awarded in addition to compensatory damages. Punitive damages are typically awarded in cases that involve outrageous conduct. They aim to punish the defendant and deter the behavior. In Arizona, the plaintiff has the burden to prove that the defendant intended to cause the injury, was motivated by spite, acted to serve its own interests while disregarding a substantial risk, or consciously pursued a course of conduct knowing that it created a risk to others. If the defendant deliberately ignored CDC and OSHA guidelines or failed to follow basic safety protocols, the court may consider punitive damages. The court would have a strong incentive to deter this behavior in an attempt to stop the spread of COVID-19. Similarly, if the defendant intentionally spread the virus, the court may consider punitive damages to punish the defendant and discourage the behavior.
Some jurisdictions have damage caps for personal injury claims. These caps limit the amount of compensation victims can recover. For example, Ohio limits the amount of recoverable noneconomic damages in a personal injury suit to $250,000 or three times the amount of economic damages, whichever is greater. In addition, the total amount of noneconomic damages cannot exceed $350,000 for a single plaintiff. A similar cap also applies to punitive damages, limiting the recoverable amount to a maximum of $350,000. Other jurisdiction such as Maryland, Colorado, Idaho, and Mississippi have similar caps for damages in personal injury cases.
Q: Do I need a lawyer?
A: If you are an employee or consumer who has contracted COVID-19, it may be helpful to speak with a coronavirus lawyer to examine whether you have a valid claim. The COVID-19 pandemic has presented various obstacles for businesses, employees, and consumers, creating complex legal issues. Each state has adopted different laws and regulations that will determine whether you are entitled to compensation for any injuries you may have sustained from contracting the virus. There are many resources available online to inform you of your rights and legal options. However, a lawyer will be the best source to determine whether you can successfully seek compensation for your injuries.
Q: How much do COVID-19 lawyers charge?
A: In most personal injury cases, lawyers charge on a contingency fee basis. According to The American Bar Association, clients pay contingent fees to a lawyer only if the case succeeds. In a contingent fee arrangement, lawyers are typically paid a percentage of the recovery from the case. This percentage is generally set to about one-third of the total amount that the client recovers at the end of the case. If the cases is not successful, the client is not required to pay the lawyer for any of the work completed for the case. However, the client may be obligated to pay court filing fees and other costs incurred in the duration of the case.
Q: Are there any COVID-19 related class actions?
A: Many have expressed concern that the COVID-19 pandemic will lead to a flood of litigation and possible class actions against businesses throughout the country. According to Reuters, 1,018 COVID-19 related lawsuits were filed as of late May. However, only forty-five were personal injury or malpractice suits against businesses. It also reported that there are about 197 class actions related to COVID-19. The National Law Review has compiled an ongoing list of COVID-19 related class actions. These actions involve educational institutions, employment issues, travel issues, prisons, insurance, price gouging, and securities. Class actions alleging that a business acted negligently and caused COVID-19 to spread are listed below.
- Schoengood v. Hofgur LLC, 20-cv-02022 (E.D.N.Y. May 4, 2020).
- Molchun v. Royal Caribbean Cruises, No. 1_20-cv-21792 (S.D. Fla. Apr. 30, 2020).
- Nedeltcheva v. Celebrity Cruises Inc., No. 20-cv-21569 (S.D. Fla. Apr. 14, 2020).
- In re: Juul Labs, Inc. Marketing, Sales Practices & Products Liability Litigation, 19-md-2913 (Apr. 10, 2020).
- Archer v. Carnival Corporation, et al., No. 20-cv-02381 (N.D. Cal. Apr. 8, 2020).
- Turner v. Costa Crociere SPA, No. 20-cv-21481 (S.D. Fla. Apr. 7, 2020).
Q: Is there a Wal-Mart COVID-19 class action?
A: While there are not any class action suits against Wal-Mart for negligently spreading COVID-19 as of this writing, the company has been listed as a defendant in a couple of other cases. According to this news article, Walmart, Trader Joes, Kroger and many other retailers have been accused of illegally inflating egg prices during the COVID-19 pandemic. The American Bar Association has also reported that the family of a Wal-Mart worker who died of COVID-19 is suing the company. The family alleges that Wal-Mart ignored its employees’ symptoms and did not take proper precautions to protect against spreading the virus.
Q: What can litigation around SARS and other previous viruses tell us about potential COVID-19 litigation?
A: The COVID-19 pandemic presents unique challenges due to its devastating and broad impact throughout the globe. Prior epidemics may provide us with guidance on how to mitigate losses. Outbreaks of SARS, H1N1, and other illnesses varied throughout the country but each lead to legal issues and waves of litigation. The types of claims that occurred during these outbreaks are likely to repeat during the present COVID-19 pandemic.
Litigation from past illnesses show that many lawsuits will be based upon negligence. When Legionnaires cases began to surge, most lawsuits were civil actions against building owners for negligence or failure to protect guests on their property. Following the SARS outbreak in Canada, many claims alleged that hospitals failed to take proper precautions to prevent the illness from spreading. As discussed above, though, establishing causation in a negligence claim may be difficult if the illness is wide-spread and very contagious. Litigation around past pandemics suggest that a plaintiff must have strong evidence to link the defendant’s business to the resulting injury. Following CDC and OSHA guidelines may help businesses to defend against negligence suits and may help to prevent large damage awards.
 Strict liability could be a potential claim, but I did not see class action or mass tort claims against institutions relying on this theory of liability.
 These claims are sometimes referred to as Strategic Lawsuits Against Public Participation (SLAPP) claims. SLAPP claims are often used to intimidate or prevent an individual from criticizing an organization or person. Some states have anti-SLAPP laws that help to protect against meritless claims.