By Aron Solomon
A personal injury law firm near Vancouver, Canada took to social media with an offer to sue people who spread COVID-19.
Imagine having Covid-19. Being told you have Covid-19. Being told to self isolate and taking basic steps to protect others. But not doing so and harming others.
You may be called a Covidiot.
You may be sued.
They also claim on their site that they trademarked two taglines:
We Sue Covid Spreaders ™
We Sue Covidiots™
While their social media post was definitely noticed, from a legal perspective, how successful will future COVID-19 civil lawsuits be as a hot pandemic summer turns into what looks to be a pretty rough new wave autumn?
Last Christmas, a couple who knew they had COVID-19 boarded a plane from San Francisco to Hawaii and were arrested upon landing. They were charged with second-degree reckless endangerment because they were aware of their positive test result and were placing other passengers on the flight in danger. But this was a criminal matter. What about new civil liability arising from what is now in mid-2021 recognized as a body of science around the virus and how we should act and interact with each other in society?
Michael Epstein, a New Jersey personal injury lawyer, observes that:
“Each month finds the science around safe COVID-19 behaviors more settled. Especially as vaccines that had emergency FDA status are granted full approval, personal liability around negligence and intentional acts that endanger other people are going to be a growth in personal injury law.”
That’s a real key here because the line between negligence and intentional acts can be blurred around the pandemic. Going back to the basics of personal injury law, the difference between an intentional tort (doing something intentionally to injure someone else) and negligence is intent. So in a case where someone is alleged to be a covidiot but didn’t have intent to injure, the argument here is one of negligence. They knew or should have known that their act could harm someone else.
To be a covidiot that harms someone on purpose is a different ballgame.
A good example to contrast the two would be someone who goes into a business establishment and refuses to wear a mask. There is an argument that they are being negligent in a time of a global pandemic of increasing intensity in doing so. But this is a fundamentally different argument from someone who does the exact same action with the intent to harm others. It really doesn’t matter from a legal perspective whether they know they are infected with the virus at the point they commit the act. What does matter is that they believe their intentional act can harm others. If it does, this intent to injure matters.
None of this is new, as there was a Department of Justice memo on enforcement actions relating to COVID-19 in the first month of the global pandemic, way back in March, 2020. To give you a sense of the language that was being used around the virus and liability back then:
…you may encounter criminal activity ranging from malicious hoaxes, to threats targeting specific individuals or the general public, to the purposeful exposure and infection of others with COVID-19. Because coronavirus appears to meet the statutory definition of a “biological agent” under 18 U.S.C. § 178(1), such acts potentially could implicate the Nation’s terrorism-related statutes.
The big difference between now and then is how much we know about the virus, transmission, and safe/unsafe/negligent/tortious behaviors around the virus. And while courts around the nation continue to suffer from a pandemic backlog, there will be no shortage of cases that come from people’s increased frustration with each other and with a virus that just won’t go away.