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Lead Article: The Changing Landscape of Business Liability for COVID-19 Exposure

December 22, 2021

What happens when a customer or client becomes infected with COVID-19 and believes the infection can be traced back to a business it visited?  This article looks at the early COVID-19 liability cases brought by customers against businesses, and the steps states have taken to curb such litigation.  Many states have recognized the negligent transmission of disease as a cause of action.  In the first year of the COVID-19 pandemic, customers across the country relied on such negligence claims to sue businesses for purported exposure.  Although these cases present hurdles in the form of identifying a duty of care and demonstrating causation, well pleaded cases have survived motions to dismiss, as seen, for example, in cases brought against the cruise ship industry described below.  In response to this trend, states keen to encourage businesses to reopen have enacted legislation to limit such COVID-19 exposure liability. 

            Will businesses be insulated by immunity statutes?  In many states, the implementation of immunity statutes remains under debate.  Even the most protective statutes, such as those in Texas and Florida, hinge immunity on compliance with health and safety standards and carve out willful or reckless behavior.  And although such statutes may help lower the costs of full-scale litigation and liability, business defendants will nonetheless incur, at minimum, the costs and hassle of obtaining early stage dismissal.  Thus, businesses should not rely on immunity statutes alone, and be proactive in ensuring that customers and clients assume the risks associated with patronage.

I.  The Onset of COVID-19 Liability Cases

“To be stricken with disease through another’s negligence is in legal contemplation as it often is in the seriousness of consequences, no different from being struck with an automobile through another’s negligence.”  Billo v. Allegheny Steel Co., 328 Pa. 9, 105 (1937).  Before the COVID-19 pandemic, state courts allowed tort lawsuits alleging liability for the negligent transmission of disease.  See, e.g., Earle v. Kuklo, 98 A.2d 107, 109 (N.J. 1953) (landlord “knowing that the premises are infected with contagious disease germs which render them dangerous, without disclosing that fact to the tenant,” is liable in damages for injury to those contracting of the disease); John B. v. Superior Court, 38 Cal. 4th 117 (2006) (permitting “tort of negligent transmission of HIV” where defendant has actual knowledge or reason to know of HIV infection.”).

            The early lawsuits seeking compensation from businesses for COVID-19 related injuries have asserted primarily negligence and gross negligence claims.  Negligence cases require a plaintiff to prove that the defendant breached a duty of care owed to the plaintiff, and that the breach caused the claimed injury.  Other early COVID-19 liability cases have included intentional infliction of emotional distress (“IIED”) and negligent infliction of emotion distress (“NIED”) for mental or emotional injury.

            Proving causation in a business setting may be a plaintiff’s biggest roadblock.  It cannot, for example, “be established based on mere speculation, conjecture and inferences drawn from other inferences.”  Saelzler v. Advanced Grp. 400, 25 Cal. 4th 763, 775 (2001).  Whether one’s visit to a business resulted in the contraction of COVID-19 will be difficult to prove given the disease’s wide transmission, although methods of contact tracing may provide evidence of the source of infection. 

            Many of the early COVID-19-related lawsuits were directed at the cruise industry, where the close proximity of passengers over many days made causation easier to prove.  For similar reasons, other businesses in the travel and events industries are at risk.  And although courts have applied federal maritime law to the cruise industry cases, the arguments raised regarding duty of care and causation with regard to COVID-19 are comparable and, thus, instructive. (See Maritime Law Answer Book, 2015 at p. 8 available at

            One of the first waves of COVID-19 cruise industry cases were dubbed the “Fear Cases,” in which the plaintiffs did not test positive or suffer symptoms.  Instead, they sought recovery for emotional distress damages based on their “fear” of becoming ill.  In Weissberger v. Princess Cruise Lines, Ltd., for example, plaintiffs alleged that the operator breached its duty “to ensure that Plaintiffs would not be exposed to unreasonable risk of harm” by: (1) “failing to take necessary precautions to keep its passengers” safe in choosing to launch after passengers had disembarked with signs of COVID-19, (2) failing to warn new passengers of the potential exposure, and (3) failing to screen new passengers before boarding.  2020 WL 3977938,*1 (C.D. Cal, July 14, 2020).  These breaches allegedly caused plaintiffs to suffer emotional distress and trauma from the fear of contracting COVID-19 while quarantined aboard the ship, even though they did not exhibit symptoms.  Id.

            The judge expressed concern, however, that accepting the plaintiffs’ allegations of harm without injury would create “a flood of trivial suits, and open the door to unlimited and unpredictable liability.” Id. at *4.  Believing the alleged claims were closest in form to negligent infliction of emotional distress, and applying federal maritime law, the court held that plaintiffs needed to satisfy the zone of danger test, which limited recovery to cases where plaintiffs “manifest some symptom of the feared disease.”  Id. at *2-3 (citing Nelson v. Metro-North Commuter R.R., 235 F.3d 101, 113 (2d Cir. 2000)).  Lacking allegations that plaintiffs contracted COVID-19 or expressed any such symptoms, the judge dismissed Weissberger and the other thirteen consolidated Fear Cases, with prejudice.  Id. at *1, 5.  

            In another Central District of California case against the cruise industry, Archer v. Carnival Corporation and PLC, class action plaintiffs brought claims of negligence, gross negligence, IIED, NIED.  2020 WL 7314847 at *1 (C.D. Cal.,Nov. 25, 2020).  The Archer court followed Weissberger, dismissing plaintiffs who merely feared, but did not allege that they contracted or experienced any symptoms of COVID-19.  Id. at *7.  However, the court held that the remaining plaintiffs who had alleged that they had no symptoms of COVID-19 or exposure to anyone exhibiting symptoms before boarding had adequately alleged causation to survive dismissal.  Those plaintiffs had sufficiently alleged that they were exposed to COVID-19 while on the ship and that their symptoms began within 14 days of their claimed exposure.  Id.; see also Kantrow v. Celebrity Cruises Inc., 2021 WL 1976039 (S.D. Fla Apr. 1, 2021) (same).  Both Archer and Kantrow proceeded through discovery, and Kantrow has since settled.  See C.D. Cal. Case No. 2:20CV04203, and S.D. Fl. Case No. 1:20-CV-21997, respectively.

            In Lindsay v. Carnival Corp., the court addressed whether cruise operators’ actions rose to the level of extreme and outrageous conduct necessary to state a claim for IIED.  2021 WL 488994, at *4 (W.D. Wash. Feb. 10, 2021).  The court held that defendants’ “decision to set sail in the early weeks of what would become a global pandemic, when much remained unknown about COVID-19, does not constitute conduct beyond all possible bounds of decency” especially where plaintiffs failed to allege that defendants “acted in a manner inconsistent with what the Center for Disease Control had recommended at the time.”  Id.  The Court dismissed the claims without prejudice.  After Plaintiffs amended their complaint three times, the case has moved beyond the pleading stage.  Id. at *5.

            On a motion to dismiss, the court in Crawford v. Princess Cruise Lines Ltd., 2020 WL 7382770, at *6 (C.D. Cal. Oct. 8, 2020) addressed whether plaintiffs had standing to sue where defendant argued the alleged “physical pain” injuries from COVID-19 were de minimis.  The court said it was not prepared to decide at the pleading stage that “only some COVID-19 symptoms are sufficiently harmful to warrant compensation,” and denied the motion to dismiss.  Id. at *4 (dismissing without prejudice for failure to sufficiently allege causation).  In Kantrow, defendant likewise raised the argument, “that claims for cold- and flu-like symptoms are not actionable under the doctrine of de minimis non curat lex.”  Id. at *15.  The court similarly refused at the pleading stage to determine what level of symptom was sufficient to warrant compensation.  Id. at *16.

II.  Immunity Statutes re Tort Liability for COVID-19 Exposure

In response to these cases and the threat of others, in May 2020 the U.S. Chamber of Commerce and hundreds of other trade associations wrote Congress to request “temporary and targeted liability relief legislation” for businesses. See Press Release, U.S. Chamber of Commerce, U.S. Chamber Calls for Liability Protection for Businesses as Fear of Lawsuits Continue to Grow (May 27, 2020) (noting that “[b]usinesses who follow public health guidelines shouldn’t have to worry about lawsuits.”).

            However, there are critics of such protections.  For example, consumer groups, including Consumer Reports, the Consumer Federation of America, and the National Association of Consumer Advocates wrote to Congress to oppose immunity legislation.  See Letter from Consumer Reports and Others Opposing COVID-19 Liability Shield for Businesses (May 6, 2020).  These organizations argued that federal legislation, “would undermine consumer and worker protections, excuse negligent conduct, and show unwarranted  disrespect for state law, including centuries-old state-law remedies.”  Id. (“[I]f a consumer can prove that a store’s unreasonable failure to take precautions is what caused him to get sick … the business should not be shielded from legal accountability.”).

            Congress has yet to act.  But state legislatures have been taking on the issue.  Most states implemented immunity protections for the healthcare industry for claims related to COVID-19.  (See, states have been slower to extend similar protections to other businesses. Roughly one-half of the states have enacted immunity statutes that extend generally to businesses beyond the healthcare industry.  Id.  In states that have enacted such protections, many require that businesses comply with federal, state, or local health and safety guidance, and none shield liability where the injury was caused by wanton, reckless, willful, or intentional misconduct.  Id.

            A handful of states have also implemented heightened pleading standards or other threshold requirements for COVID-19 claims.  For example, Florida’s COVID-19 immunity statute, retroactive to the beginning of the pandemic, requires a plaintiff to plead claims with particularity and submit a physician’s affidavit attesting to the belief that the plaintiff’s COVID-19 damages occurred as a result of the defendant’s acts or omissions. ( Plaintiffs also must show that the defendant was not in substantial compliance with guidelines at the time of the alleged exposure.  Id.  Texas’s “Pandemic Liability Protection Act,” goes even further, requiring that a plaintiff be able to show that the defendant knew of and failed to warn the plaintiff of a condition that was “likely to result in the exposure” to COVID-19.  (See  The plaintiff must also show that the defendant knowingly failed to implement or comply with health standards.  Id.  Finally, a plaintiff must submit an expert report that provides a factual and scientific basis for the assertion that the defendant caused the plaintiff to contract COVID-19 within 120 of any answer.  Id.

            Meanwhile, legislatures in several of the most populated states, including California, New York, New Jersey, and Illinois, are still debating immunity protections for businesses. ( Delaware, Washington, and Maine have no COVID-19-specific laws regarding liability, for any industry.  Id.

III.  Will Immunity Statutes Provide the Protections They Promise?

Although immunity statutes may appear protective and provide comfort to businesses, most statutes do not provide hurdles that prevent the filing of lawsuits.  Id.  Rather, they provide an affirmative defense that can be subject to resolution on a motion to dismiss .  Most require defendants to demonstrate compliance with ever-changing health and safety guidelines, including those that concern vaccination, mask wearing, and social distancing.  (See Mini Kapoor & Julie Pettit, Innovative Tort Claims in the Wake of Covid-19, 93 The Advoc. (Texas) 27, 27 (2020)).  And no state statute can provide relief against federal claims, such as those that apply to the cruise industry.

            Brady for Smith v. SSC Westchester Operating Co. LLC demonstrates the shortcomings of these state statutes.  Nursing home residents sued the operator alleging negligence and willful and wanton misconduct for exposing residents to staff who had tested positive for COVID-19 or were symptomatic.  2021 WL 1340806 at *1 (N.D. Ill. Apr. 9, 2021).  Defendant argued that the Illinois Emergency Management Agency Act, which conferred immunity to any “‘private person, firm or corporation’ who renders ‘assistance or advice at the request of the State’ during a disaster shall not be civilly liable for causing death or injury to any person,” required dismissal. Id. at *3-4. 

            The court disagreed.  It held that “because ‘an immunity defense usually depends on the facts of the case,’ dismissal at the pleading stage on immunity grounds is usually inappropriate. So a complaint will not be dismissed based on immunity unless the plaintiff has unambiguously pleaded all the elements of the affirmative defense.”  Id. at *5 (quoting Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001)).  Because plaintiffs alleged that defendant’s actions did not comply with some requirements of the Emergency Management Act, the case could not be dismissed.  Id.  The a defendant must demonstrate that it met the standard of care before immunity is granted, which may require a trial.  Brady thus cautions that immunity statutes may provide only delayed protection, and only to qualified defendants, but nothing against the costs and disruptions of litigation.          

            What can a business do to better protect itself from COVID-19 liability?  It should take steps to ensure that customers and clients assume the risks associated with patronage.  Options include an implied waiver from a warning sign at the business entrance or an express, written waiver that communicates the COVID-19 risks and allows customers and clients to voluntarily accept them.  (Betsy J. Grey & Samantha Orwoll, Tort Immunity in the Pandemic, 96 Ind. L.J. Supp. 66, 84–86 (2020)).  Courts generally enforce waivers for ordinary negligence, although not all states do so for personal injury claims, which category some states may deem COVID-19 claims to fall within.  (See, e.g., Corbin on Contracts § 85.18 (2019); La. Civ. Code Ann. art. 2004 (2018)).

            A business should also remain current on national, state, and local health guidelines.