Since the beginning of the COVID-19 pandemic, people have wondered how the courts will handle the inevitable lawsuits by employees and customers alleging that a business negligently exposed them to infection. Enough time has now passed that we are beginning to see some of the cases reach a resolution, and it appears that, overall, employers and businesses occupy a pretty strong defensive position.
A good example of the types of claims that could be made can be found in the recent decision in Madden v. Southwest Airlines, Civ. No. 1:21-cv-00672 (D. Md. June 23, 2021). This wrongful death lawsuit was brought by a Southwest flight attendant for the death of her husband. The Plaintiff claimed that she contracted COVID-19 during recurrent training that was necessary for her to be able to keep her Certificate of Demonstrated Proficiency. The Plaintiff claimed Southwest negligently failed to implement “reasonable safety and health protocols” such as COVID-19 prescreening for trainees and trainers, failed to mandate masks and social distancing, failed to sanitize equipment, and failed to implement contact tracing. Three days after the training, the Plaintiff developed COVID-19 symptoms, and her husband began experiencing symptoms seven days later. Plaintiff’s husband died nine days later due to complications from COVID-19.
Southwest Airlines brought a motion to dismiss the suit, arguing that Plaintiff could not establish one of the key elements of a negligence claim, duty. For purposes of ruling on the motion to dismiss, the court accepted Plaintiff’s factual allegations as true. Applying Maryland’s seven-factor test to determine the existence of duty, the Court found that, while Plaintiff’s husband’s second-hand infection might be foreseeable, there was a low degree of certainty that his death was caused by the training. The Court noted that “there is little guarantee that the particular infection originated from [a particular contact] as opposed to some other source, given how hard it is to completely isolate oneself from other, ubiquitous infection vectors.” The Court went on to state:
In the midst of a global pandemic, it is incredibly challenging to know precisely where or when any individual caught the virus—indeed, that is precisely what has made the pandemic such a difficult beast to contain. Thus, there is a substantial degree of uncertainty that the (sic.) Southwest’s training would be reasonably certain to cause any third-party non-attendee to contract COVID-19, such that this factor weighs against imposition of a duty.
The Court also examined what the effect would be on employers if the Court were to find the existence of a duty to third parties such as Plaintiff’s husband. The Court was concerned that:
finding a duty here would leave employers litigating countless COVID-19 third-party exposures simply by virtue of contact with their employees during the pandemic. All that would functionally be required for duty to attach would be potential exposure at work and subsequent contact with a foreseeable third party, which represents a relatively common set of circumstances.
The Court observed that the scope of potential liability would be extraordinary and could open the employer to suits related to an employee’s walk through the lobby of an apartment, trips to the grocery store, or use of a public bathroom.
While the Court held that there were four factors in the seven-factor test that pointed toward the existence of a duty, the fact that the finding of a duty would “open the floodgates” of litigation outweighed these other factors, and the case should be dismissed.
While we are still in the early days of what is likely to be years of COVID-19 litigation, this thoughtful decision shows that courts are wary of taking any action that will lead to an explosion of claims and a dramatic expansion of liability for businesses.