After President Donald Trump found out that his close aide Hope Hicks had tested positive for Covid-19, he did not change his travel plans or campaign schedule. Despite his exposure to her, he boarded Marine One and flew in close proximity to staff to Bedminster, New Jersey, where he then held a fundraiser. Now, with his own positive diagnosis, top White House officials are scrambling to get tested. GOP donors at the event, meanwhile, are panicking about whether they contracted the potentially deadly virus.
Under our civil justice system, one is usually legally responsible to another where their negligence — defined as unreasonable conduct under the circumstances — caused harm.
Clearly, Trump’s actions put others in danger. Beyond the anger and fear this causes those with whom he came into contact, there’s the issue of responsibility should any of them get severely ill and die. It’s a question on the minds of thousands of Americans whose loved ones lost their lives to this disease through their encounters with other sick people.
Indeed, with so many deaths from the coronavirus seeming to stem from careless behavior, many people who have been infected or lost someone to the virus wonder whether they have a legal claim. Wrong as it may seem, the answer is: probably not.
Under our civil justice system, one is usually legally responsible to another where their negligence — defined as unreasonable conduct under the circumstances — caused harm. Certainly when it comes to the coronavirus, there’s been a lot of negligence.
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But there are also a lot of high hurdles to getting compensation. The first, and biggest, revolves around causation. The disease is in such rampant circulation and there are so many possible exposure points, linking a case to any one individual is extremely difficult.
In the case of the president, given the volume of interactions and settings anyone near him has been in, it’s near impossible to make an indisputable connection. Even more clear-cut cases are still beset with obstacles.
Take the large August wedding held against the Maine governor’s orders limiting social gatherings. The state’s Center for Disease Control and Prevention has traced more than 170 cases of Covid-19 back to the event, with eight resulting in deaths — so far. None of the eight individuals who died chose to take the risk of attending the wedding; their infections were secondarily connected. According to the state CDC, the related outbreaks included people who worked at a nursing home and a jail transmitting it to others in those facilities.
Yet even if the Maine wedding hosts, venue, nursing home and jail all knew there were infected people in their midst, and that the public gathering violated a state executive order, that’s not enough to prove a specific individual transmitted the virus to another specific individual.
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Anyone sued in this case would probably argue that the person who died may have been exposed to many people who could have passed on the virus. Since the person bringing the lawsuit has the burden of proof, the conjectures the defendant can raise about causation will likely be fatal to most cases.
When someone has been required to work in a place that exposes them to risk, as opposed to inhabiting an environment where the virus is circulation, that would seem to be a stronger set of circumstances. Beyond the White House, meatpacking plants, warehouses and other large facilities have reportedly required workers to be in close proximity to each other, potentially spreading the virus among the staff. That’s clearly negligent.
But while a case is easier to make should a worker die in these circumstances, the ability to get adequate compensation is still frustratingly limited. A worker injured on the job is usually only able to bring a worker’s compensation claim against their employer, which under most states’ laws provide just a modest schedule of benefits.
If the worker carries the virus home to a loved one who contracts the virus and dies, the estate of the decedent may have a claim, but then they’re back to the issue of causation. The company would likely argue the worker may have acquired the virus from someone other than a colleague. Maybe the worker got the virus food shopping or in a restaurant, the argument can go.
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Sure, if the decedent and the worker were quarantining except for the employee’s exposure at work and they lived together in unavoidably tight quarters, a decent legal claim may exist. But those factual circumstances will be the exception, not the rule.
And any compensation to someone who can prove a direct chain back to a negligent individual, rather than a business, faces the difficult circumstances of collecting on judgments against individuals.
Most people don’t have the assets to pay a legal claim. Further, in most states, separate marital assets are protected from a lawsuit based on the negligence of only one spouse.
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What about homeowners insurance? Unfortunately, such policies often have exclusions for communicable diseases or commercial activities.
If any other individuals are linked to the incident, that will often reduce or eliminate liability. So someone who gets the virus in a crowded bar would likely be judged responsible for their own injury or death. And where someone dies from getting the virus from that negligent bar patron, in most states, the estate’s recovery against the bar will be reduced by the comparative fault of others, including the bar patron.
How about a claim against local, state or federal governments for weak or nonexistent rules or guidelines that permit the behavior that leads to transmission in the first place? That case won’t work either, as mistakes in discretionary judgments by public officials, the president included, are immune from civil claims.
So it’s no surprise that relatively few personal injury or wrongful death lawsuits have been filed in the six months of suffering our nation has endured despite more than 200,000 deaths. And that’s unlikely to change much even as the numbers increase.
Our civil justice system — the world’s most advanced — has served both to financially compensate injuries and deter bad behavior. That deterrence is critical to public safety.
As disheartening as these circumstances might be for the bereaved, is the lack of litigation a positive thing for our broader society? It’s certainly less work for lawyers and good for business, so many will applaud that outcome.
While a lawsuit is no substitute for good health, the threat of suits has incentivized careful conduct across America for decades. Our civil justice system — the world’s most advanced — has served both to financially compensate injuries and deter bad behavior. That deterrence is critical to public safety, especially when leaders such as Trump have taken few of the steps they could have to reduce the contagion.
The tight rules that will prevent civil recoveries for most virus transmissions will also prevent the appropriate level of legal responsibility needed to compel safe behavior. That should concern us all.