COVID-19 (also known as SARS-CoV-2 or the coronavirus) needs no introduction. Sadly, the virus that first gripped the globe in early 2020 has been a part of our daily lives ever since.
You’ve undoubtedly heard about it and been affected by the pandemic in some way. Even if you’ve not personally become ill with covid (or aren’t worried about it), it has likely changed how you do your job, how your children attend school, or how you interact with your friends, family, or community.
But for those who have become ill with covid, they could be the “lucky” ones who had a mild case and recovered quickly, or they could be suffering from long-term effects — and those are the ones who survived.
Early in the pandemic, some people were taking precautions like cleaning groceries and wiping doorknobs or shared surfaces. The science has since evolved to show us that these things aren’t as necessary as we thought, but that covid spreads primarily through aerosols transmitted by our breath. That means you can catch covid from an infected person by breathing in the same room or space where they talked, sang, coughed, sneezed, or simply breathed particles carrying the virus.
Can you sue someone for giving you covid?
It’s human nature to want justice when we believe we’ve been injured by another person, particularly if we believe that the loss of a loved one was due to someone’s negligence.
Negligence is the cornerstone of a personal injury or wrongful death lawsuit.
In order to recover damages (financial costs) for any injury or death, you need to prove that the person or company that caused the injury was at fault because they reasonably should have known that their action (or inaction) would result in harm.
For example, if you were injured in a car accident because someone ran a red light, you can sue them.
So can you sue someone for giving you COVID-19?
That’s a little more complicated.
Technically, you should be able to sue someone who caused you harm or illness. But a virus that you can’t see, smell, hear, taste or touch presents challenges for determining exactly how and when you were exposed.
You can’t win a lawsuit if you can’t prove how you got infected. And while it’s highly unlikely that you contracted covid from handling a bottle of milk or your mail, it’s not impossible. And, if you’ve left your home at all during the time when you could have been exposed to the illness (i.e. 14 days prior to when you first had symptoms), then there’s no real way to know who you could’ve been exposed to or who infected you.
After all, there are some people who are positive for COVID-19 but who never have symptoms... so even if you took an outdoor walk with a friend who wasn’t sick, you won’t know for sure that the person wasn’t covid-positive at the time because they might not have known they were covid-positive. If their infectious period has passed by the time you become ill, there isn’t a way to know for sure when or if they were infected if they never had symptoms.
And herein lies the problem.
However, businesses still have a responsibility to take appropriate measures to keep staff and patrons safe. Some states passed laws shielding businesses and employers from liability for covid exposure.
If you can prove that the behavior that infected you with COVID-19 was intentional, reckless, or criminal, you might be able to file a successful lawsuit.
Duty of care
A duty of care is the requirement to act in a reasonable manner to avoid causing harm — in this case, illness — to others.
If someone knows they are infected with COVID-19 and they purposely don’t follow basic precautions set by the CDC or local health officials to protect others, they could be breaching their legal duty. That could include failing to appropriately isolate from others and going out in public, violating quarantine or stay-at-home orders.
However, failure to take other types of reasonable measures (wearing a mask, washing hands, etc.) by a person who isn’t infected with covid (or isn’t aware that they are) likely is not considered a breach of legal duty.
Causation is how something happened.
The burden is on the plaintiff (the injured person) to prove that the defendant (the person being sued) caused their injury or illness, and that also means that they need to prove that there is no other way it could have happened.
So if you wish to sue for contracting the coronavirus, you’ll have to establish that there is no other way you could have been infected.
Civil vs. criminal courts
There have been a few news stories about people who deliberately attempted to infect someone with COVID-19, either by spitting or coughing on them. Although those individuals have been charged criminally in some cases, it would still be very difficult to receive financial compensation in a civil lawsuit.
A legal action is handled differently in civil courts than in criminal courts. For example, if someone is charged with attempted murder, it’s because they tried to murder someone... and they can be convicted even though the person isn’t actually dead.
Here’s another example:
If you were in a car accident and the other driver was drunk, they could be charged with a DUI just because they were drunk, even if you weren’t injured. But you can’t sue them for damages if you were not injured as a result of the accident.
So, going back to a person who has COVID-19 deliberately behaving in a way that could cause another person to get sick, they might be criminally liable but not liable in a civil lawsuit.
The civil lawsuit would still hinge on whether you can prove that they actually caused your illness. While you might be able to prove that someone intentionally spit or coughed on you (if there are surveillance cameras or witnesses), and that they knew they had covid at the time, you still would have a very difficult time proving that the incident is what caused you to become ill. You would have to be able to prove that there is no other way you could possibly have become infected, and that is almost impossible with the virus circulating so widely.
There have also been some lawsuits for intentional torts (an injury caused by the defendant on purpose) related to exposing a plaintiff to a sexually transmitted disease (STD). This type of case would hinge on the intentional act (having sex), intentional failure to disclose a medical diagnosis, and a causal link between the action and the plaintiff’s injury or illness. Although this is easier to prove than becoming infected with COVID-19, it’s still not a simple lawsuit to win.
If a person is charged with a crime, it’s handled in criminal court and there’s no effect on the victim. You might be asked for a statement or testimony, but you will not recover financial costs from a criminal conviction.
If you’re looking to recover financial damages, it’s up to you to file a personal injury or wrongful death lawsuit.
The essence of a civil personal injury lawsuit is to compensate the plaintiff for the financial costs of their injury. If you had covid but were able to recover at home, it might not have cost you much money except for time lost from work.
On the other hand, if you were hospitalized — or if the victim was a family member who died of the virus — then you likely have some associated expenses.
Typically, you can recover costs in a personal injury lawsuit for expenses that include:
- Medical treatment, including ongoing therapies
- Assistive devices like a wheelchair, prosthetics, hearing aid, etc.
- Lost wages, present and future
- Additional expenses, including housekeeping, childcare, etc. if you become disabled and are unable to perform the tasks associated with your daily life
- Pain and suffering, emotional distress, or mental anguish
- Wrongful death costs to survivors
In order to recover damages from being infected with COVID-19, you would need to prove that the defendant caused your illness and that the illness cost you money.
However, instead of seeking financial damages, Jensen is suing for an “injunction,” which is a legal requirement that the defendant either take or cease some action. In this case, Jensen is requesting an injunction for the school district to reinstate the mask mandate and comply with CDC guidance for mitigating the spread of COVID-19 in schools.
As of this writing, the case has not yet been resolved. (source)
With all of this in mind, the pandemic has created new legal frontiers and precedent for a variety of lawsuits. Every type of lawsuit has a first time that it was successful, even some that seemed unlikely.
Most personal injury lawyers offer a free consultation if you’ve been injured. If you believe that you’re entitled to compensation because someone either intentionally or recklessly infected you with COVID-19, you can reach out to a lawyer for advice and guidance.