Infectious Behavior

According to the American Bar Association, New York state residents have filed the most lawsuits related to the COVID-19 pandemic. “We’re getting cases every day like, ‘My boss forced me to work, and there were a lot of people sick and I got it at work,’” says Cheryl Eisberg Moin, a personal injury litigator in New York City. “A lot of health workers, a lot of factory workers.”

These lawsuits target companies, nursing homes and other entities accused of failing to protect workers or customers. But can you sue if someone who knows they’re infected and engages in risky behavior that makes you sick?

Yes, say legal experts. But good luck. 

“There have been cases where you have people who have made threats, where they’ve intentionally coughed on somebody. You’ve seen those instances reported in the newspapers, and people have been arrested and are being prosecuted for that,” says Richard H. Abend, a personal injury attorney with Abend & Silber, who is also getting a lot of calls. “In terms of civil lawsuits, we’ve seen [sexually transmitted disease] cases that have existed previously, but a key component that you have to prove is causation. And COVID is different than HIV or other sexually transmitted diseases. COVID is something that’s out there. You can get it from multiple sources and in multiple ways. … It’s going to be difficult, if not impossible, to prove that you got it from any one individual at any one time.”

Abend, who has handled difficult STD cases for both plaintiffs and defendants, says you could possibly have a viable civil case against someone you believe has infected you if you have had “zero contact with any other human being other than this person that wants to intentionally harm you.”

And then there’s the issue of negligence versus intent—a difference that is easier to define if, for example, a driver inadvertently kills someone while drinking as opposed to deliberately using a car as a weapon to plow through a crowd. Likewise, it’s much harder to determine if that next-door neighbor who knew he was infected with the coronavirus and started horsing around with you anyway was being spiteful or reckless.

The lawsuits that seem most viable, says Moin, are those involving company actions that expose customers and employees. “I think you’d have an excellent lawsuit if a building owner allowed unrestricted access by outsiders into a co-op building, a multistory or any multiple dwelling,” says Moin. “You may not actually call that intentional, but you have reckless disregard for the people that live in that building.”

Another example is in a nursing home setting. “It becomes easier on the institutional side to prove causation because grandma didn’t go anywhere but within the nursing home,” Abend says.

Lawyers are busy studying precedent to determine whether they should proceed with such lawsuits. “It’s a developing area,” Moin says. “I find that lawyers are delving into this and being very creative and looking at what owners should be doing: owners of restaurants, commercial enterprises, common carriers in terms of transportation.”

That said, Abend predicts that attorneys will hesitate to tackle one-on-one infection cases “except in very, very rare and limited instances,” partly because most insurance policies won’t cover damages caused by an intentional act, even if the claim can be substantiated. “There may be people that want to sue and lawyers that want to take these cases, but I personally wouldn’t want these cases. I just don’t think that they’re going to be easy to prove the causation element.” 

In a two-page document detailing “enforcement options” for citizens who expose others to the coronavirus, the New York Police Department references the city’s public health code: 

“No person shall intentionally or negligently cause or promote the spread of disease … by unnecessarily exposing himself or herself to other persons, knowing himself or herself to be a case or carrier of a contagious disease.” An offender who purposely coughs or spits on another person can even be arrested and charged with a misdemeanor or issued a citation, the report states.