1. Was there a legal duty owed by the alleged wrongdoer to the person who was injured?
2. What was the legal duty owed?
3. How was the legal duty violated?
Generally speaking, under the Workers’ Compensation laws of every state, employees are not permitted to sue their employers or co-workers for injuries they suffer on the job. There are a few exceptions to this rule. Employees of interstate railroads and maritime employees are exempt from Workers’ Compensation laws and covered by special federal statutes that permit the injured employees to sue their employers. In addition, if an employer fails to provide workers’ compensation benefits in New York. there is a provision (Section 11 of the Workers’ Compensation Law) that permits the injured employee to commence a lawsuit against their employer. Furthermore, employees are permitted to bring lawsuits against a company who does not employ them (third-party liability), even if they are in the course of their employment when injured. For example, the New York Court of Appeals held more than 100 years ago that: “If the employer furnishes a ladder or a scaffold for a contractor’s employees to work on, he must be careful to furnish a safe appliance” (Hess v. Bernheimer & Swartz, Pilsener Brewing Co., 219 N.Y. 415, 418–19, 114 N.E. 808, 809 (1916).
So, what does this mean in the context of Covid 19 pandemic liability? If an employee is required to return to work at a location where the lockdown has been partially or totally lifted, and the employee is exposed to the Covid 19 virus due to the negligence of a third-party (not a co-employee), is there a basis for bringing a personal injury action to recover damages? We all have a legal duty to conduct ourselves in a reasonable manner. If you know you are infected with the Covid 19 virus or have reason to believe that you may be a carrier and still expose yourself to others in a way that unreasonably places them at risk of becoming infected, there may be liability for your actions. An example might be an infected delivery person who comes in close contact with people while not wearing personal protective equipment (i.e. mask and gloves).
The second part of the evaluation is what injuries were caused by someone else’s negligence? In the case of Covid 19, this poses a huge hurdle that will be extremely difficult to clear. How would you prove your infection was caused by any particular individual? You would have to be able to prove you were not otherwise exposed to the virus (i.e. the only person you had contact with in the outside world was the offending third-party). This would not be impossible, but certainly very difficult. Could you have been exposed to the virus while opening up a package or your mail?
What if the third-party who infected you was the only person you’ve had contact with in the outside world and you could prove they were infected with Covid 19, but the third-party was wearing personal protective devices ( face mask and gloves) and kept a distance of six feet from you. This would make it almost impossible to prove a case of negligence because the third-party was compliant with the Center for Disease Control (CDC) guidelines.
In summary, being able to successfully pursue a personal injury case to obtain damages for being infected with the Covid 19 virus presents extreme challenges, but is not impossible.
