COVID-19, the disease caused by a novel coronavirus, is the biggest news topic in the world, as of the time this blog was written. It is difficult to imagine a broader and more severe public health issue. According to Dr. Anthony Fauci, a leading infectious disease specialist, over 100,000 people could die from the virus in the United States. According to the Centers for Disease Control and Prevention, you can reduce your risk of catching or spreading coronavirus by frequently watching your hands, avoiding touching your face, and covering your mouth when you cough or sneeze.
We started reading stories about people coughing and sneezing on people and food, and it got us thinking about what type of legal actions can be taken against these people. People can be charged with crimes for knowingly transmitting diseases, but can a victim recover by filing a lawsuit?
The short answer is yes, but it would be tough to win. You would have at least two different causes of action you could potentially use. One would be battery, which is an “intentional tort.” That means you would have to prove that someone coughed on/sneezed on/touched/etc. you with the intention of giving you coronavirus and was successful in doing so. If you got coronavirus, the hardest part would be proving that you got it from the defendant instead of somewhere else.
You can also sue someone for negligently transmitting a disease to you. The elements of this action are the same as they are in any other type of negligence case. You would have the burden of proving duty, breach, causation, and damages.
In Georgia, all people have a duty to exercise ordinary care not to injure/harm other people. It would be easy for you to prove duty. It would likely be much harder to prove breach of that duty. You would need to prove that the defendant knew or should have known that they had coronavirus, and that they did not exercise “ordinary care” to prevent themselves from giving it to you. The jury would have to decide if the defendant exercised “ordinary care” to not give you coronavirus. Some examples of what might be a breach in this case are if the defendant wiped his nose then shook your hand, drank from your drink while you weren’t looking, or coughed in your face without trying to cover his mouth.
Like the intentional tort of battery, the most difficult part of a negligent transmission of coronavirus case is causation. Unfortunately, the coronavirus is extremely contagious – Dr. Fauci estimated millions of Americans may get it at one time or another. That means there’s a good chance the virus could have come from someone other than the defendant. It could have come from a surface you touched at a store. You would not need to prove beyond a reasonable doubt that you got coronavirus from the defendant – the jury would only have to decide you probably got it from the defendant, which you may be able to do if, for example, you stayed in your home for 2 weeks but got coronavirus after the defendant was your one and only visitor during that time.
Last, you would have to prove damages – in other words, that you suffered some sort of injury due to the defendant’s negligence. You may have gone to the hospital and been charged with medical bills. You would likely be in pain and suffer if you got sick. You may miss work and lose pay if you get sick. Depending on the defendant’s conduct, you may even get punitive damages, which are designed to punish the defendant rather than compensate you (but you would get to keep that money). Punitive damages may be appropriate in this case because almost everyone knows how dangerous and contagious coronavirus is, and many people would agree it’s reckless to be around other people if you know you have the virus. To get punitive damages, you would have to convince the jury by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, wantonness, or an entire want of care which would raise the presumption of conscious indifference to consequences. All that is fancy legal language which means you’d have to prove they (1) infected you on purpose (2) were so careless with their actions that they apparently didn’t care they risked infecting you.