Frustrated public health officials in New York have issued subpoenas to eight people who they believe attended a large party hosted by someone showing symptoms of the coronavirus (the host later tested positive for the virus, along with others) and have not cooperated with contact tracers, according to The New York Times. The party itself violated a state order at the time to limit gatherings to 10 people, reported the outlet, and the attendee’s noncompliance was a hurdle in tracing the potentially fatal virus. The case, along with others like it, suggests there might be legal ramifications for interacting with the public or infecting others while carrying the coronavirus.
In late June, a California man named Tommy Macias, who was overweight and had diabetes, died from complications of COVID-19 after attending a party alongside someone who was aware of his own coronavirus diagnosis, according to NBC News. The friend said he was asymptomatic and therefore did not believe that he was contagious. In May, a cluster of coronavirus cases in California was tied to a birthday party where a coughing guest joked that she might have COVID-19 (she did), and students in Alabama were caught throwing COVID-19 parties, to which they invited infected guests and offered money to whoever got infected next.
These examples all raise the question: Can people be held liable for infecting others with the virus? The short answer: It’s complicated.
Though this is a new virus, there is some legal precedence here. In 2006, the Supreme Court of California ruled that a man who was sued for transmitting HIV to his partner was required to disclose information about his sexual history beforehand. The defendant didn’t have to know that he was HIV-positive at the time, but he should have had reason to think he could have HIV, the court found. As a result, there was a legal precedent set that people infected with HIV may sue the person who transmitted the virus to them.
However, that’s HIV — not the coronavirus — but Adam Scales, a professor of law and co-director of the Rutgers Center for Risk and Responsibility, tells Yahoo Life that he expects a rise in lawsuits around the coronavirus. “I think that we will see some lawsuits, but it will be complicated,” he says. Brian Kalt, a professor of law at Michigan State University, agrees. “Generally speaking, people could be liable for damages for infecting others, either intentionally or negligently,” he tells Yahoo Life. “Intent would be if someone purposely infects someone else, or if they act with some other purpose, but know for certain that their actions will infect someone else.”
But Kalt says he believes that any cases surrounding COVID-19 will most commonly involve negligence. “The law of negligence is basically that you are liable if you were not as careful as the law requires you to be, and someone was injured as a result of your carelessness,” he explains. “The devil is in the details, of course —how careful does the law require you to be? The answer is typically that you are supposed to be as careful as a reasonable, prudent person would be in your circumstances. A reasonable person can still take risks; you aren’t liable for every single bad thing that you cause — only for the ones that you caused by being unreasonably careless.”
Houston-based personal injury attorney Tom Stilwell adds, “A person who knows that they have COVID-19 and knowingly or intentionally transmits the disease to another person could potentially be held liable for that transmission. But an asymptomatic person who does not know they are positive and who transmits the disease unknowingly is unlikely to face that same liability."
The outcome may depend on how someone infected others too, says Scales. “There is a difference between going to a pharmacy or grocery store when you’re infected versus other behavior that’s hard to defend or even understand, like going to a party,” he says. “Essentially, you are responsible if you take an unwarranted risk that a reasonable person would not do.”
In many cases, it may be difficult for someone to prove that a plaintiff actually was infected by a defendant, especially given how widespread the virus is at this point, Scales says. “The plaintiff will be asked [by the defendant’s lawyer] what they did in the proceeding weeks before they were infected and if they had a mask on every single moment of the day” to prove they could have been infected elsewhere, he says. “These cases will not be a slam dunk for the plaintiff.”
Another factor to consider, says Kalt: “The victim might have been unreasonably careless too. In most states, that could reduce or even eliminate the defendant’s liability.”
Courts will also need to determine how far they want to trace cases for legal responsibility. “If someone goes to a party, infects someone who then infects another person who then infects their grandmother, who dies of the virus,” says Scales, “it will be difficult to prove who is at fault even if we were absolutely sure that this was the direct causal chain.
“The law is reluctant to trace consequences to an infinite degree,” he adds. “Judges are going to have some concern about line-drawing.”
For someone to win a case like this, the plaintiff would have to prove that the defendant was unreasonably careless. “So just leaving the house would not make someone liable, but having a cough, knowing you are positive and going to a crowded store without a mask on probably would,” says Kalt. “The tough cases would be the ones in between these extremes.”
Overall, though, experts say you can expect to hear more about these examples as time goes on. Says Kalt, “I absolutely expect that we will see people being sued and held liable for being unreasonably careless regarding the virus.”
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