We are all struggling in one way or another to comprehend and deal with the COVID-19 pandemic. Each day we ride a wave of emotions from hopeful to fearful, from empowered to hopeless. We also read about individuals experiencing significant anger towards the government, China, people who don't wear masks in stores, the Tiger King, and people who can't figure out how far apart six feet actually is. For some people who may have contracted the virus, their anger is directed at the person or people who they believe infected them. Some are even questioning whether they can file a lawsuit! So what's the deal? Can you really sue someone because you contracted Corona?
When Harry Met Sally
Let's take a look at Sally, who unfortunately contracted the Corona Virus after having a brief discussion with her neighbor, Harry, while she was on an exercise walk.
During their brief discussion, Harry told Sally that he felt compelled to get out of the house and get his heart pumping, but was struggling with his allergies. She wished him well and power-walked away.
It turns out that a few days after their fateful encounter, Harry tested positive for the Coronavirus. His symptoms, which he initially attributed to allergies or a cold, were the beginnings of the virus. Sally's nosey friend Jack was quick to spread the news about Harry's battle with COVID.
Close to a week later, Sally started feeling ill. She was tested for COVID and received a positive result. She feverishly began trying to figure out how she would have contracted the virus. She had been working from home and only went out of the house to exercise. Then it hit her. Harry! He was sick when she spoke with him. Harry gave her the virus.
Now Sally was furious. First of all, it is not fair that her friend Jan never exercises and has a fantastic figure. To make matters worse, she recently saw Jan standing on her porch, eating a Devil Dog. Second, she was upset that Harry had been so irresponsible and had given her the virus.
Sally recovered, but it was a difficult time for her. Now that it was all over her fury over Harry had reignited. She desperately sought answers. To whom should she turn? A relative? A friend? (just not skinny Jan). A priest? Nope. She had the answer - a lawyer. She was going to call a lawyer to see if she could sue Harry.
Sally checked Google for a lawyer, quickly signed up for a Zoom account, and set up an appointment with her newly found champion of justice. So what did her knight in shinning pinstripes tell her?
Favorite Lawyer Answer
It depends. In general, Sally is not going to be successful in a lawsuit against Harry. Just because someone had the virus and you were near them does not mean that you can successfully sue them. However, (any other favorite lawyer word), you may have a claim if specific criteria are met.
If Harry (1) knew that he was infected when he met Sally, (2) did not tell her that he was infected, and (3) purposefully made contact with her, Sally may have a claim. Keep in mind that Sally has the burden to prove that Harry transmitted the virus to her. If Sally could prove these elements, she may have a negligence or civil battery claim against Harry. The issue is the difficulty in meeting these criteria.
STD Lawsuits Provide Guidance
Obviously, not many of us have seen pandemics like this one before, including the Courts. However, we can look at STD transmission cases for some guidance.
Let's say that Sally had been passing her time in quarantine with Bobby, who had spent much of 2019 sampling the local goods. For Christmas, Bobby unwrapped a nice STD. When he hooked up with Sally, Bobby knew that he had an STD and did not tell her. In a case like this, Sally may have a successful lawsuit against Bobby for negligence and civil battery.
In her STD case, Sally could prove that Bobby was the culprit. Arguably, he owed her a duty of care to tell her he had been swimming with the crabs, which he breached by not doing so. See how it is easier for liability to attach because of Bobby's failure to disclose his condition and his direct contact with Sally?
On a side note, someone who has a disease and intentionally tries to infect another person can be guilty of a crime. Of course, the infected Ted person would have to have intended to infect the victim.
Long and Short
Swinging back to when Harry met Sally, since Harry did not know that he had the virus, he did not owe a duty and could not have breached any duty to Sally. So, Sally has no viable claim. Even if Harry had known that he was infected when he met her, in a Pandemic, it is not easy to prove Harry directly caused Sally's infection.
This pandemic has most people on edge, and bouts of frustration and anger are common. Anger and frustration, however, are not elements of a successful lawsuit. So sorry Sally. You have no claim and you will have to continue to deal with the frustration of this pandemic. At least you recovered from the virus. Things could be much worse. Oh, look there's Jan . . . with a milkshake.
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