Gavel lying in a courtroom.

The Impossibility of Legal Accountability for COVID-19 Torts

By Chloe Reichel and Valerie Gutmann Koch

Since the first days of the COVID-19 pandemic, employers, businesses, and other entities have anticipated litigation around tort claims associated with the novel coronavirus. Early in 2020, scholars here began to grapple with questions of tort liability relating to the pandemic response. However, nearly three years later, it appears that the warnings of a “tidal wave” of lawsuits were vastly overstated.

In this symposium, we asked torts scholars to reflect on questions surrounding whether and how individuals and entities might be held liable for the harms associated with SARS-CoV-2 infection, particularly as infection has grown increasingly widespread and COVID mitigations have become more limited or entirely eliminated.

Their responses fall into three broad categories. Some respondents analyze how we got here — the specific conditions of the COVID-19 pandemic that have influenced and constrained potential litigation. Some of these scholars focus on the flood of liability protections passed by states to shield health care providers, institutions, and others from liability for COVID-19 infection or failure to follow crisis standards of care. Others consider the limited legal strategies available to plaintiffs. They explore barriers to successful tort claims for infection and other sequelae of the COVID-19 pandemic. The remainder focus on specific circumstances or settings in which special obligations may apply.

How we got here

  • In her free verse poem, Sweet Land of Immunity, Teneille Brown uses powerful imagery and classic Americana to describe the injustices of the pandemic era: “As if it weren’t already impossible to hold / power accountable— / did we even know we had rights to plead? / Could we ever have hoped / to make it to a jury / to even partially subdue / the corporate ramparts / so gallantly streaming?”
  • At the outset of the pandemic, advocates for tort reform warned of an onslaught of litigation, and successfully secured liability shields for many industries, Timothy Lytton explains. This represents a missed opportunity, he argues, as liability exposure may have motivated actors to take stronger action to mitigate disease transmission.
  • Continuing the analysis of laws that shield individuals and institutions from liability, Nicolas Terry offers an in-depth discussion of policy and politics. Liability shields in the pandemic context may also be interpreted as “symbolic gestures by state legislators who were desperate to point to action at a time when government at all levels seemed paralyzed in the face of COVID.” The laws might also hint at the priorities of legislators, by protecting business interests over public health.

Legal limitations and strategies

  • Michelle Richards recognizes the complexities of establishing a reliable standard of care in COVID liability claims. Business incentives, as well as the U.S. Centers for Disease Control and Prevention’s ever-changing protocols, make the standard of care a moving target, thereby limiting plaintiffs’ access to tort remedies.
  • When it seems like COVID is everywhere, the doctrine of multiple sufficient causes might help plaintiffs establish causation, Nina Kohn argues. The common law of torts provides that “where multiple actors simultaneously cause a single harm, each can be held liable, regardless of the fault or lack of fault of the others.” However, the future import of this doctrine is currently up for debate.
  • If an employee gets sick at work, and then brings the illness home to their family, can the employer be held liable? Mark Rothstein considers this “take-home” liability theory in the context of a highly anticipated California Supreme Court decision on the matter.
  • Jennifer Bard explains tort law’s shortcomings with respect to as-yet-unknown future harms. Statutes of limitations and the challenge of accurately assessing damages are two such obstacles to potential claims brought by plaintiffs suffering from long COVID as a result of negligence.

Special obligations

  • Do professors have an obligation to notify their students if a classmate tests positive for COVID? Heidi Feldman examines the shifting landscape of university COVID policies and faculty obligations to protect students from harm.
  • Christopher Robertson argues that airlines have legal obligations to mitigate in-flight transmission of infectious diseases. However, passengers infected with COVID while traveling have yet to test this theory. Robertson explains why this might be the case, and the prospects of potential legal challenges.
  • Dorit Reiss proposes that a no-fault compensation system for those who experience injuries from COVID-19 vaccines will encourage trust in the system, thereby encouraging people to get vaccinated, which can help to mitigate the pandemic’s burden. A no-fault system is preferable to the regular torts system because it avoids litigation and provides a more certain path to compensation for those who are injured.
  • Ana Ayala, Anthony Brown, Emanuele Cesta, Katherine Ginsbach, Sam Halabi, and Dawn Mapatano, writing as members of the Global Health Security Agenda Legal Preparedness Action Package, describe their efforts to minimize liability barriers to accessing pandemic vaccine and medical countermeasures. Addressing domestic, regional, and global inequities, they offer solutions by applying a legal preparedness approach to developing guidance for stakeholders.

Despite the magnitude of suffering left in the wake of the pandemic, as of August 2022, less than 700 tort actions had been filed alleging deaths and injuries, and such actions allegedly peaked in early 2021. As described by many of the contributors to this symposium, this dearth of litigation may be a result of existing tort law (including the complexities of proving causation and establishing a standard of care) and efforts at the federal and state level (including liability shields), both of which may have effectively barred recovery for tort liability. However, as demonstrated by other contributions, tort law approaches may still hold promise — in some limited circumstances — for minimizing harms or compensating those who have already been harmed.

Chloe Reichel

Chloe Reichel is the Petrie-Flom Center’s Communications Manager. She serves as Editor-in-Chief of the Bill of Health blog and leads the Center's broader communications efforts.

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