Coronavirus and Civil Liability for Potential Infection: Part I

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.

Acute Care Hospital Bed Supply in the Time of Pandemic: Just in Time Inventory vs. Pandemic Preparedness

guest post by Ann Marie Marciarille

Thank you to Eric E. Johnson of the University of Oklahoma College of Law for putting together a Second Mini-Conference on Coronavirus and Law on April 15, 2020.  Eric was gracious enough to allow me to choose to talk about Acute Care Hospital Bed Supply in the Time of Pandemic.  All of the other participants were gracious enough to listen and ask questions, in turn. I thank them as well. 

I chose acute care hospital bed supply as my topic because of a string of op eds I noted from around the country faulting earlier hospital merger and acquisition policies that, apparently, created the tight supply of acute care hospital beds laid bare by Coronavirus  emergent hospitalizations.  Commentators in Boston, Chicago, New York, and San Francisco all implied that acute care hospital bed supply was too tight, in light of past decisions to allow mergers or acquisitions or closures.  All of this led me to the question of just how tight we want acute care hospital bed supply to be?

Don’t look in conventional antitrust law on merger analysis for language on leaving some excess acute care bed supply in the system in preparation for surge or pandemic needs, because you won’t find it.  This also made we wonder why we have no way to talk about these things or why we lack the vocabulary to ask these questions.

Practice experience reminds me of a few situations where opponents of mergers had mixed in, along with other grounds, the cry that wringing all the excess acute care bed capacity of the system would leave us ill prepared for another 1918-style flu epidemic or 1908-style earthquake.  Such arguments typically gained little traction, as there was no consensus that surge or pandemic emergency capacity had any role to play in conventional merger analysis’s focus on technical and scale efficiency in acute care hospitals and the goal of greater competition by wringing excess supply out of the system. 

But we are humbled now or as humbled as we may be for some time by the incredible surge in demand the leaking stories of people, particularly people who are low income, being sent home with fever, pneumonia, and instructions to self-monitor which turned into instructions to self-monitor unto death.  Is what was formerly seen as excess capacity really idle capacity necessary for pandemic or mass disaster preparation and ought merger analysis take some cognizance of the interest of the acute care hospital bed consuming public in having some flex in the bed supply?

I am still thinking about this.

[Cross-posted at]