WATCH OUT FOR COVID-19 AND THE TORT LAWSUITS IT BRINGS
February 1, 2021 Posted By Sean O. Edwards COVID-19
COVID-19 is a viral disease discovered in 2019 that causes severe, and acute respiratory injury to its victims. According to the United States’ Center for Disease Control (“CDC”), the term “COVID-19” is an abbreviation/acronym where, ‘CO’ stands for ‘corona,’ ‘VI’ for ‘virus,’ ‘D’ for disease, and ‘19’ for the year it was discovered.
The disease has resulted in a global pandemic but with local impact. In particular, COVID-19 is now spawning a new area of litigation that businesses and their insurers need be mindful of.
Various websites have been tracking the COVID-19 tort exposure litigation cases on the rise in New York. Businesses, landowners, and insurers are now being faced with tort claims, either from business patrons alleging that they contracted COVID-19 on their premises, or their insured’s premises, and/or employees claiming that they contracted the virus on said premises during the course of their employment.
The Fisher Phillips Covid-19 litigation tracker (see fisherphillips.com/covid-19-litigation) notes some 17 cases in New York alone (as of January 26, 2021) where businesses and commercial landlords face wrongful death, unsafe workplace, and negligence personal injury lawsuits alleging coronavirus exposure on the business property.
A vigorous defense is certain against patrons. While workers compensation is the typical remedy for on-the-job injury (see Workers' Compensation Law §§ 10, 11, 29), landlords, business owners and their insurers, need not be dismissive of such potential claims where employees can bypass the workers compensation bar in New York by asserting that their employer, who may also be the building landowner, or otherwise, committed an intentional tort, an exception to the exclusivity of the Workers' Compensation Law.
The Courts have held that for the intentional tort exceptions to be applicable, the complaint must allege an intentional or deliberate act by the employer directed at causing harm to the particular employee (see Fucile v Grand Union Co., 270 AD2d 227 [2d Dept. 2000]). A determination of the applicability of the exception is a must in the analysis of such cases.
We anticipate the plaintiff’s bar to exploit businesses (particularly in New York City/State) that are eager to reopen and being aggressive in doing so, where such businesses are exposed to litigation for certain failures.
Here are some examples of claims that businesses may face exposure for: failing to timely close the business in accordance with the Mayor or Governor’s then executive orders to shelter-in-place, failing to adhere to local or federal statutes concerning opening, failure to post or have appropriate signage, failing to take temperatures of patrons or other employees, failing to provide appropriate personal protective equipment where applicable, failing to adhere to CDC guidelines, or in any other way permitting, allowing, or causing that plaintiff or a decedent to contract COVID-19.
COVID-19 may be a relatively new phenomena, and litigation stemming from it is still fresh, but if such a claim is filed against your business or your insured, you must be prepared to address that litigation with seasoned litigators experienced in handling Workers Compensation related cases, that know the nuances to the intentional law exceptions, that have handled Federal employment law matters, and have experience litigating the applicability of waivers (if in use). French & Casey stands ready to help.