Central New York Injury Lawyer Blog
Most New York State counties, including Monroe, Onondaga, and all the counties in between, have a law on their books which allows the county public health commissioner to issue an order for involuntary isolation if an individual disobeys a quarantine request and is believed to be an immediate threat to public health. And the counties are not shy to enforce the law. Example: One of my brothers, who lives in Auburn, New York, developed Coronavirus symptoms a few weeks ago. The Onondaga County Health Department ordered him to get the test (which he willingly did) and then ordered him quarantined in his home until the test results came back (7 days later). Fortunately, he tested negative, but a County Health Inspector stopped by his house two times a day to make sure he was not leaving the home. If they had found he had “flown the coop”, they likely would have issued an order for his arrest.
Here’s an even better example: A Monroe County resident with Covid-19 symptoms, who refused testing, and then disobeyed a Monroe County Department of Public Health civil order to quarantine himself, was arrested and jailed recently in a County jail in Brighton, New York. He has been isolated from other inmates to prevent COVID-19 spread.
Assuming this selfish and anti-social person passed the virus onto others, who got very sick or died, can his victims or their families sue him for money damages in New York? That’s our New York personal injury law question for today.
The answer is “yes”, but with several caveats.
The basic requirements for a negligence cause of action are: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) the breach of duty caused harm to the plaintiff; and (4) damages to the plaintiff.
Here, a self-quarantine Order by a government official establishes a legal duty. By violating the Order, the defendant breached the duty to anyone he or she came into contact with. Those who “caught” the virus from him obviously were caused to catch it because of the virus carrier’s negligence. If they suffered any illness or were killed by the virus, they have obviously suffered damages. Thus, a plaintiff who sues such a defendant can theoretically prove all four elements for a cause of action for negligence: Duty, breach, causation and damages.
This is really no different from other cases in New York that have held that a defendant who knows he has an STD, but fails to disclose it to a sex partner, can be sued for transmitting the STD.
But not so fast. There are practical problems for bringing this lawsuit. First, the plaintiff could have caught the virus from some other person or place. How do you prove the virus was transmitted to the plaintiff from the defendant? With STD’s it’s a lot easier to prove, especially if the plaintiff has not had sex with anyone else in recent times. Unlike STD’s, which spread exclusively through sex, the coronavirus spreads easily through the air and from surfaces.
So proving “causation”, that is, proving the cause of the coronavirus illness was the defendant, is a problem. But it is not necessarily an insurmountable problem. The burden of proof is not absolute. The plaintiff needs only prove that it is “more likely than not” that the defendant spread the virus to the plaintiff. To prove that, a plaintiff might offer evidence that no one else in plaintiff’s social or work realm had the virus, and the only person plaintiff had contact with who had the virus was the defendant. Still, that’s a pretty tall order given that many people have the virus and show no symptoms.
That’s not the end of the trouble with the case, though. Can the defendant pay a judgment? If not, you’re in trouble. The defendant’s homeowner’s insurance will almost certainly not cover this. The deliberate act of violating a lawful Order requiring self-quarantine will likely bring the event outside of insurance coverage. Most insurance policies exclude actions involving gross negligence or intentional acts. An insurer will likely win the argument that defendant’s behavior here constitutes gross negligence or an intentional act.
I have no doubt we will be seeing a lot of coronavirus lawsuits soon, but most of these will be against cruise ships, nursing homes, and other such entities for having failed to take better precautions to prevent the spread of the virus among their “residents”. Those suits have a better chance of success because (1) the plaintiff does not have to prove exactly who transmitted the virus, just that the plaintiff likely caught it on the ship or in the nursing home and (2) those defendants have deep pockets so there will be a pot of money available if plaintiff wins the case. Further, the defendants’ insurance carriers will not likely disclaim coverage because the lawsuit allegations will not involve intentional acts of transmission, but mere negligence in failing to take proper precautions to prevent the virus’s spread.
It will be interesting to see the mushrooming cloud of coronavirus lawsuits that await us.
If you think you might have the virus, isolate yourself. If you don’t, and you pass it on to others, maybe they can sue you. More likely, they won’t be able to prove their case because they could have gotten it from elsewhere. But even so, do you want to be a “spreader”? Is that really the kind of human being you want to be? Of course not. Be kind, considerate, and loving.
Keep yourself, and others, safe!
Mike Bersani
Email me at: bersani@mbk-law.com I’d love to hear from you!
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Syracuse NY Personal Injury Lawyers
Michaels Bersani Kalabanka
315-253-3293