COVID-19 Negligence Claims Will Not Be Unique

Never has the verse from Ecclesiastes 1:9 NIV rang truer, that is, “what has been done will be done again; there is nothing new under the sun.”

Living under the threat of an infectious disease outbreak may seem like a new reality, but it is not. Two generations ago, the threat of contracting highly contagious infectious diseases was a part of everyday life for persons living in North Carolina and elsewhere in the United States. The development of vaccinations that largely eliminated these contagions has, perhaps, led to a complacency that has made COVID-19 feel new.

Our society and our common law learned over a century ago how to deal with the transmission of infectious diseases. Writing in the MIT Technology Review six years ago, Vivek Wadhwa discussed how it takes time—sometimes decades, sometimes centuries—for the law to catch up with rapidly evolving technologies, societal conditions, or societal norms.

That is not the case with COVID-19.

Common law principles applicable in ordinary negligence cases will enable plaintiffs and defendants in COVID-19 negligence cases to sort out who is to blame for infections and related injuries.

In 2011, the North Carolina Court of Appeals reversed a trial court’s dismissal of a negligent infliction claim brought by a Chapel Hill man against his neighbor, in Carsanaro v. Colvin, 215 N.C. App. 455 (2011). In that case, a plaintiff sued his neighbor after the neighbor engaged in an affair with the plaintiff’s wife and infected her with a sexually transmitted disease. The wife then infected the plaintiff. The Court of Appeals cited a 1920 North Carolina Supreme Court case as precedent for allowing the plaintiff’s negligent infliction claim to proceed.

Upholding a jury verdict against a husband who had infected his wife with a venereal disease, the North Carolina Supreme Court in the 1920 case, Crowell v. Crowell, 180 N.C. 516 (1920), cited a Minnesota case named Skillings v. Allen, 143 Minn. 323 (1919), holding that “it is a well settled proposition of law that a person is liable if he negligently exposes another to a contagious or infectious disease[.]”

While few appellate cases in North Carolina address the issue of the negligent infliction of an infectious disease similar to COVID-19, in citing Skillings, the state Supreme Court left no doubt that a negligent infliction claim involving an infectious disease can be maintained in North Carolina.

In Skillings, a mother and father employed a physician to treat their sick daughter. The physician knew the daughter was suffering from scarlet fever, but he told the parents that they could take their daughter home and be in close contact with her, that there was no danger of the fever being passed to them. Both parents caught the disease, and the father missed several weeks of work, losing $1,000 in wages.

When the parents sued the doctor alleging negligence, the doctor moved to dismiss. The trial court denied the doctor’s motion, and the doctor appealed. Apparently unimpressed with the doctor’s appeal, the Minnesota Supreme Court observed: “The case is not a novel one.”

The Minnesota court viewed common law principles as aptly suited to address the parents’ claims against the doctor, writing: “Generally speaking, one is responsible for the direct consequences of his negligent acts whenever he is placed in such a position with regard to another that it is obvious that if he does not use due care in his own conduct he will cause injury to that person.”

The court rejected the doctor’s claim that a lack of contractual relations between the doctor and the parents lessened or eliminated his duty to them, writing: “Assuredly this is a case where there is every reason to hold that defendant was under a legal duty to plaintiff, and it is of little practical consequence whether we call the duty contractual or noncontractual.”

The court then wrote, in stunning language prophetic of economic woes that COVID-19-related shutdowns would cause, a century later:

“The health of the people is an economic asset. The law recognizes its preservation as a matter of importance to the state. To the individual nothing is more valuable than health. The laws of this state have been framed to protect the people, collectively and individually, from the spread of communicable diseases.”

Further describing the duty that the doctor owed to the parents to protect them from contracting scarlet fever, the Minnesota Supreme Court cited a 1913 case—Farrell v. Minneapolis & R.R. Ry. Co., 121 Minn. 357 (1913)—involving a fire that spread across lands owned by a railroad, noting that “it is now generally recognized that each member of society owes a legal duty, as well as a moral obligation, to his fellows.”

The court also cited Depue v. Flateau et al., 100 Minn. 299 (1907), a case in which a plaintiff who was purchasing cattle at a defendant’s home became violently ill and asked to stay the night. The defendant refused, and he instead put the plaintiff in his cutter—a horse-drawn sleigh—and sent him on his way. The plaintiff was found the next day, along the roadway, nearly frozen to death.

In describing the nature of the duty that the defendant owed the plaintiff in Depue v. Flateau, the Minnesota Supreme Court wrote that

“[w]henever a person is placed in such a position with regard to another that it is obvious that if he does not use due care in his own conduct he will cause injury to that person, the duty at once arises to exercise care commensurate with the situation in which he thus finds himself to avoid such injury; and a negligent failure to perform that duty renders him liable in damages.”

The court added, with a line that facilities where the spread of COVID-19 has become rampant may rue: “The rule is more exacting respecting persons suffering from sickness or physical infirmities.”

The Minnesota Supreme Court cited cases from other states that recognized similar negligent infliction actions. The New Hampshire Supreme Court, in Hewett v. Woman’s Hospital, 73 N.H. 556 (1906) upheld a jury verdict holding a hospital association liable for putting a student nurse in charge of a diphtheria patient “without warning her of the danger of contagion.” The student sued the hospital after she “contracted the disease through failure to take proper precautions to guard against infection.”

The court cited an 1851 case, Piper v. Menifee, 12 B. Mon. 465 (Ky. 1851), in which the Court of Appeals of Kentucky ruled that a patient who alleged that he had contracted smallpox from a doctor could maintain a negligence action against the doctor. The doctor had assured the patient “that there was no danger of his contracting it because he changed his clothes after visiting smallpox patients[.]”

In 1902, in Missouri, K & T Ry. Co. of Texas v. Wood, 95 Tex. 223 (1902), the Texas Supreme Court ruled that a railway company could be held “liable to [a] plaintiff for negligently permitting one of its employees to escape from a detention hospital where he was undergoing treatment for smallpox at the hands of its physician. After escaping, he came in contact with [the] plaintiff and his family and communicated the disease to them.”

In 1888, the New York State Court of Appeals ruled in Span v. Ely, 8 Hun. 258 (1888) that a physician was liable to a man he had hired to whitewash a house, after assuring the man he would be safe entering the premises, even though a patient had recently died of smallpox in the house. The man sued the physician after he contracted smallpox.

North Carolina’s negligence precedent includes cases against companies for the negligent infliction of infectious diseases. In Godfrey v. Western Carolina Power Co. et al., 190 N.C. 24 (1925), for example, a power company was held liable for the transmission of malaria to a group of plaintiffs in western North Carolina after it failed to mitigate “unwholesome, unhealthy, and malarious conditions” in its construction of dams in the Linville area.

Of course, while plaintiffs who have contracted COVID-19 may maintain negligence actions against responsible persons or entities in North Carolina, if the defendants in cases are healthcare professionals or healthcare-related entities, the negligence cases will likely be subject to North Carolina’s heightened pleading requirements for medical malpractice cases. Before filing a lawsuit, a plaintiff injured by exposure to COVID-19 will likely need to secure the opinion of a professional reasonably expected to qualify as an expert that the allegedly negligent person or entity breached the relevant standard of care.

While the additional hurdles plaintiffs must overcome to sue healthcare professionals is a relatively new addition to North Carolina’s jurisprudence, negligence actions premised upon the negligent infliction of an infectious disease are not. Indeed, the challenges we face with COVID-19 as human beings and as legal professionals are not that different from what our forbears faced a century ago.