February 12, 2025
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Litigation in the Age of COVID-19: A Personal Injury Lawyer's Perspective

Liability Protections

Senator McConnell, the Senate Majority Leader, proposed thorough liability protections for businesses as far back as April 2020. His justification for this at the time was simple: liability protections would help negate a “lawsuit pandemic”, which he thought was a distinct possibility as a direct result of the COVID-19 pandemic. It followed, he believed, that if businesses are worried about a stark possibility that they could be sued, they would be hesitant to re-open fully.

On the 27th July 2020, the Senate Majority Leader – alongside Senator John Cornyn – introduced the ‘SAFE TO WORK ACT’, which commits McConnell’s desire to have liability protections for businesses to paper. The bill would aim to protect businesses, educational bodies, nonprofit organizations, health care providers and employers from COVID-19 related claims. 

Broadly speaking, claims that allege they caught COVID-19 through the negligent or non-complying business would only have a valid claim in very specific circumstances. The plaintiff would have to show “clear” AND “convincing” evidence (a high burden of proof) that:

  1. The defendant did not make “reasonable efforts” to adequately comply with legal governmental health guidance; and
  2. The defendant acted in gross negligence OR wilful misconduct; and
  3. These failures meant the plaintiff was exposed to the virus; and
  4. This exposure caused the plaintiff to become infected with coronavirus.

Congress are expected to discuss the liability protections in the next few weeks. It is, in effect, a partisan issue: Republicans see the bill as necessary to fully re-open the economy, whereas Democrats such as Nancy Pelosi see these protections as “removing responsibility from the employer”.

Personal injury attorneys will be eagerly waiting the outcome to see whether the bill passes. In the absence of of liability protections, a large amount of litigation derived from the pandemic can be expected.

Proving Causation

Plaintiffs would have to show that businesses have breached their duty of care owed to licensees if they were to bring a COVID-19 related claim. It would have to be shown that that by not complying with public health and social distancing rules, the defendant businesses breached their duty of care. Whilst this would be relatively straightforward to prove in the absence of liability protections, the key — and much more difficult task — would be proving causation. It would need to be shown there was a causal link between the breach of duty and the plaintiff’s infection — in other words, the plaintiff would need to show that they caught the virus through the defendant’s negligence, and they did not catch it anywhere else.

Proving causation for infectious diseases is difficult for a number of reasons. When it comes to COVID-19, there is a relatively long incubation period of the virus, and there is also asymptomatic transmission of the virus. This makes it extremely difficult to adequately pinpoint the exact moment and time a person became infected. Defendants would look to rebuff claims by stating that the plaintiff could have caught the virus from anywhere, at any time, and there is a lack of direct evidence linking the defendant to the plaintiff’s infection.

There has been extensive litigation on proving causation for infectious diseases for a number of years across many different states. Broadly speaking, attorneys have found it difficult to prove with the necessary authority that the plaintiff became infected at the time and place in which the plaintiff alleges. In the majority of cases, personal injury attorneys have not succeeded in ruling out the possibility that the plaintiff became infected elsewhere. It must be said that this is not the fault of incompetent attorneys: it just is, in many cases, nearly impossible to put a time and a place on an infection. If the plaintiff could have been infected on the way to the business, rather than at the business through the negligence actions of the business owner, then that is enough for the judge to dismiss the claim.

Moving forward, innovation and creativity is necessary for personal injury attorneys that are looking to become involved in these type of cases. It is up to personal injury attorneys to devise methods to be able to show causation. This may involve collaboration with key medical experts, virologists and scientific experts. With the extensive amount of litigation expected in this field, personal injury attorneys that succeed are likely to see extensive rewards for their hard work.