Sean Flynn at the American University Program on Information Justice and Intellectual Property has posted about the World Intellectual Property Organization’s action with regard to coronavirus and intellectual property, some of which is responsive to the open letter I blogged about last month. Flynn writes, “The new initiatives and statement respond to many of the issues raised in an earlier letter from a broad coalition to WIPO’s Director General asking for a clear stance on intellectual property and the COVID pandemic.”
Guest post by Professor John Culhane
As Congress resumes its ritual squabbling over how best to direct another round of economic relief from COVID-19, one current sticking point is whether to grant sweeping immunity from tort liability to businesses that decide to reopen. Because the reach of the commerce clause isn’t infinite, there is some question about whether such a move would even be constitutional as to local businesses, but the move is a predictable response to an issue that can be expected to gain currency as the pandemic continues to disrupt virtually every aspect of life. In this context, it’s worth examining how transmitting the virus would be analyzed under orthodox negligence principles – or, in rare cases, as meeting the requirements for intentional tort liability. In this first part of a two-part piece, I will take a look at the more straightforward intentional tort cases – battery; assault; and intentional infliction of emotional distress. The second part will attempt to sort through the complexities of possible negligence claims.
We can expect intentional tort cases to be rare. Anyone who purposely coughs or sneezes at someone else, to choose the most likely (if distressing) example, would clearly face liability for battery. The requirement of contact would be met by the airborne particles that would be transported from the miscreant who coughed or sneezed at the other person. Case law has established that blowing smoke in another person’s face is a battery, because of the smoke particles, and because the action is one that a reasonable person would find highly offensive. That’s no less true here: The kind of deliberate, anti-social conduct involved in the cough or sneeze would be, if anything, even more offensive. (The presence of a mask on the victim’s face wouldn’t change the conclusion on “contact,” by the way, because a battery is established when the defendant makes contact with anything that’s in close contact with the plaintiff, including clothing. The mask would clearly qualify as something in “close contact” with the plaintiff.)
There would also be claims for assault (if the victims was aware of the attack just before it happened). Neither battery nor assault claims would require a showing that the defendant actually transmitted COVID-19 to the plaintiff; the torts are complete with the offense, although obviously the damages would be much greater if the plaintiff could prove transmission of the virus and subsequent illness (or death). This will of course be difficult to do, and would likely be successful only in those cases where the plaintiff can reasonably eliminate other possible sources of infection. But juries that hear such cases might be expected to resolve reasonable doubts on this score in favor of the person who comes down with COVID-19 after the attack – or in favor of their estate.
A more problematic, though still possible, tort is intentional infliction of emotional distress. Most of the requirements would be easily satisfied. The attack certainly meet the tort’s requirement of “extreme and outrageous” behavior. Further, the defendant would readily be found at least reckless in causing emotional distress, and this tort allows recklessness (conscious disregard of a known risk) to substitute for intent. The problem is that many courts have been extremely strict on the emotional distress requirement, requiring that it be serious – not just as a matter of damages, but as a sine qua non for the tort to be cognizable at all. In some states, the distress has to be debilitating, essentially – often meaning there’s been a showing of attendant physical distress. But given the emotional toll of possible exposure to this virus, in the current climate, that usually high hurdle might not prove too high to clear.
As noted above, these claims are – we must hope! – rare. Negligence is the much greater, and thornier, problem. I’ll address this in Part II of this article.
Professor John Culhane is Professor of Law and H. Albert Young Fellow in Constitutional Law and Co-Director of the Family Health Law & Policy Institute at Widener University Delaware Law School. He presented at the April 20, 2020 Mini-Conference on Coronavirus and Law.