Widening Arena of Tort of Negligence in Times Of COVID-19

The law of torts is an ever-emerging field of law and the area under its ambit is continuously increasing. In the globalized world, the situation keeps on changing.[1] New torts keep on emerging as a result of increasing interactions between the people. COVID-19 has widened the area of the torts law by calling for lawsuits under the negligence against the people who transmitted the disease to other individuals. The tort of negligence refers to the risk which creates a risk of causing damage rather than the state on mind.[2] In this article, the author will discuss the widening arena of the tort of negligence due to the current pandemic caused by COVID-19.

COVID-19: Products and General Liability Tort Implications

The novel coronavirus 2019 disease (COVID-19) is quickly spreading while at the same time causing physical harm as well as financial damages to both people and organizations. Besides the horrible physical cost, the significant economic damage of COVID-19 may come from the tort claims that could follow from its reality. COVID-19 can be a deadly disease, and, thus, the elements and people that are tenuously engaged with its transmission, or neglect to take necessary steps to prevent its transmission, might be an ideal objective for tort liability claims. The essential businesses that might be targeted for these inescapable tort suits include healthcare, manufacturing, and hospitality and transportation. Therefore, it is indispensable that these entities and different organization perceive the expected danger of civil liability and take the corresponding action geared minimizing, if not preventing its transmission. The structure of our tort framework may expose subject entities to items obligation toxic tort claims, negligence claims, harmful tort claims and premises liability claims.[3]

Negligence and Premises Liability Claims

The concerns about potential premises risk claims originating from COVID-19 are vital in medicinal services offices, including clinics, nursing homes, earnest consideration offices, and the emergency service providers. This is genuine in light of the fact that COVID-19 places tremendous weight on our human services framework to treat, but also to prevent the further spread of this foreign disease. The danger of contracting COVID-19 is high in healthcare facilities and, thus, they may serve as targets for COVID-19 tort litigation.

Amidst the outbreak of coronavirus (COVID-19), there are many reported cases of SARS-COV-2 virus transporters who put others in danger.

In one case, for instance, two explorers who found positive for COVID-19 decided to make a trip to an island in the Jeju Province of South Korea. “Even after having the symptoms from the very first day (of their five-day trip here), they proceeded with their schedule,” said Jeju Province Governor Won Hee-Ryong, and therefore, more than 20 businesses were forced to temporarily close and over 90 people were placed under quarantine. [4]

In another case, a New Hampshire COVID- 19 patient, who was an emergency clinic worker, went to an occasion regardless of being advised to stay isolated. Last, in what is known as the “Coronavirus Flight”, a group of 114 individuals from the Chabad Lubavitch Hasidic group flew from New York to Israel, despite the fact that there were serious concerns about those passengers following the spread of COVID-19 in the Crown Heights neighbourhood.  After arriving in Israel, at any rate, 65 of those travellers found positive for COVID-19 and the 200 different travellers and the team who were on the plane were sent to self-quarantine for 14 days.

Although it is yet to be determined whether a cause of action exists for negligently transmitting COVID-19, it seems that in any event the people in the cases depicted above should be held liable, as they knew or reasonably should have known that they were transporters of the infection, those people had a duty to prevent transmission of COVID-19.[5]

Duty to Prevent Transmission of Disease

Most of the people argue that they have the right to travel and right to go to an event as their fundamental right. In India, people are provided right to travel as a fundamental right under art. 21 of the constitution as part of the personal liberty of an individual. In U.S.A under the Holfeldian analytical system, people are provided with the privilege right which they use as a good defense.[6]

To prevent the transmission of the disease the courts typically consider a set of factors “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered an injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”[7]

Although there is no precedent stating that the transmission of COVID-19 disease during flight travel while walking in a park, while shopping or while doing any other thing which involves a lot of individuals in small proximity but the courts all over the world have recognized that negligently spreading the disease to another individual call for action under the tort of negligence. In U.S.A the court has allowed the lawsuits under the tort of negligence for the negligent spread of infection based on actual and the constructive knowledge of the transmitting the disease.

In the case of John B. v. Superior Court[8], the California Supreme Court laid the burden of proof over the defendant, as he had the duty to care to prevent the spread of HIV infection which could have fatal consequences for the well-being of the community. The Court stated that the “tort of negligent transmission of HIV does not depend solely on the actual knowledge of HIV infection and would extend at least to those situations where the actor, under the totality of the circumstances, has reason to know of the infection.”

In India also S.269 of the Indian Penal Code provides for the six months imprisonment to a person who so ever he may be for negligently spreading infection of a disease which may be dangerous to the life.[9]

Similarly, the likelihood for the transmission of the coronavirus is high as it spreads through human interaction and this is a deadly disease for the whole of the community. The people have an obligation to act responsibly and to prevent the transmission.

Breach of Duty

Once it has been established that there existed a duty to care on the part of the defendant, it must be shown that the so-called duty was breached. The duty in the current scenario is to prevent the transmission of the disease and the breach occurs when the person tested positive for the COVID-19 or having the symptoms of the disease leaves his/her house visits the community places or make use of the community services. Due to the ease with which the virus spreads it is likely that the infected person will transmit the disease to another person near to him. Therefore, the infected person leaving the house or escaping the quarantine centers breaches their duty to care.

Damage

It is necessary that the person breaching the duty must cause damage to another person i.e. to transmit the disease. But here the question arises as to who transmitted the disease. It is really difficult to determine as to who transmitted the disease. To prove that a damage has been caused the plaintiff needs to show that the damage was not a remote consequence of the defendant’s negligence. To prove this the one thing that needs to be made sure is as to who transmitted the disease. Apart from this, another scenario arises when the carrier of the virus is asymptomatic means that the person is himself not aware of his illness. These silent spreaders of the virus can’t be easily identified and this makes the field of the tort of negligence even more complex.

Conclusion

The law of torts is ever emerging, new torts keep on emerging as the situation changes. The COVID-19 has made the field of law of torts even more complex. Thousands of cases of COVID-19 are coming up every day and despite the various measures being implemented the government has failed to curtail the virus. The deadly virus has claimed approximately half a million lives. The need of the hour is proper implementation of the measures. It is the responsibility of every person to prevent the spread of the disease and those spreading the disease must be held liable. However, it would always remain a question as to who should be responsible for spreading the infection whether it may be at the individual level or on an international level.


[1] R.K. Bangia, Law of Torts 4 (Allahabad Law Agency, Faridabad, 24th edn., 2017).

[2] Ibid at 226.

[3] “COVID-19: Products and General Liability Tort Implications”, available at https://m.grsm.com/publications,

(Visited on June 14 2020).

[4] Shelly Simana, “Coronavirus Negligence: Liability for COVID-19 Transmission, available at:

https://blog.petrieflom.law.harvard.edu, (Visited on June 14, 2020).

[5] Supra Note 3.

[6] Rights, available at https://plato.stanford.edu/entries/rights/#FormRighHohfAnalSyst (Visited on June 15, 2020).

[7] Rowland v. Christian [1968] 69 Cal. 2d 108.

[8] [2006] 38 Cal. 4th 117.

[9] The Indian Penal Code, 1860 (Act 45 of 1860).

Aaina Mittal from Dr. B.R. Ambedkar National Law University, Haryana

As a student of law, Aaina’s goal is to become a successful litigator. She likes to researching on various legal issues and painting is her passion.

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