Heed the Warnings of Pending Negligent Exposure Suits
Employers of all sizes, common carriers and transportation companies, hotels and resorts, as well as events-based businesses like sports, conferences, and worship should take heed of recently filed wrongful death and personal injury lawsuits against large employers, nursing homes, and cruise ships in state and federal court by both individuals and classes.
Throughout the pandemic, essential workers have reported to facilities so that Americans can continue to receive necessary services. Similarly, residents of congregate living facilities, like nursing homes, have found themselves particularly vulnerable to the pandemic. Undoubtedly, there are also close quarters on cruise ships. Every suit filed thus far has one main commonality – proximity. Considering the highly transmittable nature of COVID-19, along with the dormancy period, tracing the infection point of the disease is challenging; unless, of course, significant and continuous time was spent in close-proximity with others.
The suits discussed below are just some of the initial personal injury or wrongful death cases recently filed across the country (for more information on other torts, please see this article). Employers, businesses open to the public, and common carriers should be aware of suits based in negligent exposure or negligent response to COVID-19 so that the harbinger does not come to fruition.
Retailers
Tony Evans, Special Administrator of the Estate of Wando Evans, Deceased v. Wal-Mart, Inc., et al., Case No. 2020L003938, Circuit Court of Cook County, IL, April 6, 2020.
A relative of a Wal-Mart employee in Illinois filed a wrongful death suit in the Circuit Court of Cook County on April 6, 2020 claiming Wal-Mart and the shopping center owner failed to maintain a safe and healthy environment by failing to: “clean and sterilize the store;” “implement, promote, and enforce social distancing;” “provide…personal protective equipment;” “warn… that various individuals were experiencing symptoms at the store and may have been infected by COVID-19;” “adequately address…other employees at the store who communicated to management they were experiencing signs and symptoms of COVID-19;” as well as failure to close the store; train personnel; evaluate employees for symptoms; improper hiring practices; and failure to adhere to OSHA and CDC standards and guidelines.
Food-Processing Facilities
Blanca Esther Parra, as common law spouse and as next of friend to B.P. & L.P. (minors), et al. v. Quality Sausage Company, LLC., Case No. DC-20-06406, Circuit Court of Dallas County, May 1, 2020.
The widow of a forklift operator filed suit in Dallas County District Court after Hugo Dominguez passed away on April 25, 2020. The Complaint alleges “he was a victim of a workplace which gave more importance to profits, than human life.” The Complaint contains allegations of failure to “supervise the environment, plac[e] protocols, provid[e] and require[e] masks, gloves, and enforce[e] six feet social distancing as per CDC and Dallas County… orders.” Additionally, the Complaint alleges failures to “ensure company premises were maintained in a way to prevent illness and injuries;” “supervise the employee’s activities as per CDC and Dallas County protocols;” “warn its employees of the hazards of their employment post COVID-19 pandemic [sic];” and “install, adopt or employ adequate safety measures in its workplace to prevent incidents such as the one that injured the plaintiff, and is the subject of this lawsuit.”
Rural Community Workers Alliance and Jane Doe v. Smithfield Foods, Inc. and Smithfield Fresh Meats Corp., Case No. 5:20-cv-06063, U.S. District Court, Western District of Missouri, April 23, 2020.
An anonymous meat processing plant employee, along with the Rural Community Workers Alliance, filed suit against Smithfield, alleging that the meat processing plant failed to comply with the CDC guidelines and minimum public safety standards by: forcing many workers to work “so closely together that they are literally touching;” failing to give workers enough time to wash their hands or cover their mouths when they cough; forcing employees “to crowd into cramped hallways” and otherwise failing to implement social distancing measures; and “discouraging workers from taking sick leave and encouraging them to come into work sick.” Count I of the Complaint asserts a claim for public nuisance, alleging that Smithfield’s failure to comply with “the CDC guidelines and other minimum public health standards necessary to stop the spread of COVID-19 is causing, or is reasonably certain to cause, community spread of the disease.” Count II of the Complaint alleges a breach of duty to provide a safe workplace, claiming that Smithfield failed to implement worker protections during the COVID-19 crisis. The Complaint seeks “injunctive relief to protect the workers and community from transmission,” including, but not limited to: providing sufficient personal protective equipment; creating and implementing a social distancing plan, providing breaks for workers to wash their hands, improving sanitation practices, altering leave practices to allow workers showing symptoms to stay home, and developing and implementing a plan to test workers showing symptoms and perform contact tracing for those that may have been exposed.
Cruise Ships
Several suits have been filed against cruise lines. However, below are three matters, one a class action, of which to take particular note.
Robert Archer et al. v. Carnival Corporation & PLC; Princess Cruise Lines Ltd.; and Fairline Shipping International Corporation, Ltd., Case No. 3:20-cv-02381, U.S. District Court, Northern District of California, April 8, 2020.
2,000 passengers that sailed on the roundtrip Grand Princess Cruise from San Francisco to Hawaii on February 21, 2020 filed a class action lawsuit on April 8, 2020, asserting claims for negligence and gross negligence. The Complaint alleges that the defendants “knew or should have known that cruise ships pose an especially severe risk of viral outbreak” and that the “ships owned and operated by the Defendants had been the sites of prior lethal outbreaks of COVID-19.” The Complaint further asserts that the defendants breached their duty to passengers by: failing to inform passengers of the risks associated with the virus and that passengers on the vessel’s previous voyage “had been diagnosed with COVID-19, that one had died, and that certain passengers and crew from that trip remained onboard;” choosing to embark on the voyage despite the known risks; failing to appropriately disinfect and sanitize the ship; failing to implement medical screening and examination protocols for crew and passengers; failing to implement quarantine or social distancing protocols; and continuing to operate “large, public gathers, communal activities, and meals.”
Christopher Wiedner et al. v. Carnival PLC, Princess Cruise Lines Ltd and Carnival Corporation, Case No. 2:20-cv-04074, U.S. District Court, Central District of California, May 4, 2020.
Additionally, the son of one of the passengers on the same voyage at issue in the class action filed a separate claim for wrongful death. The Complaint alleges that the defendants “knew or should have known that the cruise ships… had been the sites of prior lethal outbreaks of COVID-19” and that they “had knowledge of the actual risks facing passengers based on… the outbreak on the Disney Princess, a mere three weeks prior to the instant outbreak.” Accordingly, the Complaint alleges that the defendants breached their duty by: choosing to go forward with the voyage; failing to implement decontamination and screening protocols; choosing not to inform passengers of the “actual and extreme risks of contracting COVID-19 while using facilities on the vessel;” choosing not to implement quarantine or social distancing protocols; and continuing to operate “large, public gatherings, communal activities, and meals.”
James Nevis et al. v. Costa Crociere S.P.A., Costa Cruise Lines, Inc., and Does 1 to 50, Case No. 0:20-cv-600759, U.S. District Court, Southern District of Florida, April 14, 2020.
On April 14, 2020, two passengers that were on a March 5, 2020 voyage out of Fort Lauderdale filed a lawsuit against an Italian cruise line, alleging that the cruise line breached its duty to passengers by, among other things: failing to warn passengers of the risks related to COVID-19, including the extent of the outbreaks on the vessel’s previous voyage; failing to warn passengers that during the March 5, 2020 voyage a passenger “showed symptoms of the coronavirus and/or came from an area (Italy) before boarding the vessel that was experiencing a massive outbreak;” failing to provide adequate medical screening; failing to adequately sanitize and/or disinfect the vessel; failing to quarantine passengers and crewmembers infected or exhibiting symptoms; failing to perform adequate testing; and failing to amend its refund and/or cancellation policy. Based on these allegations, the plaintiffs asserted claims for 1) Negligence; 2) Negligent Infliction of Emotional Distress; 3) Intentional Infliction of Emotional Distress; and 4) Negligent Misrepresentation.
Congregate Living Facilities
Likewise, several suits have been filed against long-term and rehabilitative care facilities. Below are three notable matters to consider.
Deborah De Los Angeles et al. v. Life Care Center, Case No. 20-2-07689-9, King County Superior Court, April 10, 2020.
The first suit of its kind was filed on April 10, 2020 against the Life Care Center in King County Superior Court in the state of Washington. A daughter sued the facility for her mother’s wrongful death, bringing claims for: I) Violation of the Abuse of Vulnerable Adults Act; 2) Negligence; and 3) Fraud, Fraudulent Concealment, and Negligent Representation. Specifically, the Complaint alleged that the facility: failed to implement a quarantine until weeks after the suspected first case of COVID-19 at the facility; failed to provide services necessary to maintain the mother’s physical and mental health; failed to meet the requirements for participation as a provider of services in the Medicare program established under Titles XVII and XIX of the Social Security Act as of March 16, 2020; and concealed, suppressed and failed to disclose material facts to the plaintiff relating to the first case of COVID-19 at the facility, previous deaths resulting COVID-19 at the facility, and changes in the mother’s condition.
Judith Joy Jones et al. v. St. Jude Operating Company, LLC et al., Multnomah County Circuit Court, May 14, 2020.
Likewise, a wrongful death suit has been filed against Healthcare at Foster Creek, a Portland nursing home. The daughter of a resident sued the nursing home owner and the management company, alleging that the defendants: “tested residents for COVID-19 but did not timely or accurately inform residents or family members of results;” “downplayed the COVID-19 risk;” “lied about their safety practices;” and “failed to share crucial information about the dangerous conditions at Foster Creek and the spread of COVID-19.” Specifically, the lawsuit contended that the facility did not inform the family of its deficient practices, nor that the situation was so dire that the facility was no longer able to admit new residents.
Riverbend Post-Acute Rehabilitation, Circuit Court of Wyandotte County
Four wrongful death suits have been filed in Wyandotte County against Riverbend Post-Acute Rehabilitation in Kansas City, Kansas. The families of residents allege that their family member contracted COVID-19 due to the facility’s negligent care. Particularly, the Complaints allege that the facility: failed to provide its staff with proper personal protective equipment (PPE); did not adhere to social distancing guidelines; did not separate those with symptoms from others in the facility; failed to monitor residents and staff for COVID-19 symptoms; and failed to inform the family of the potential outbreak at the facility. Further, the Complaints allege that the outbreak was started by an employee who came to work at the facility while showing symptoms, including a fever, and did not use any PPE when interacting with residents.
Additionally, four wrongful death lawsuits have been filed in Fulton County State Court in Atlanta, Georgia against Arbor Terrace at Cascade.
What can employers and business owners do?
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Form a COVID-19 response team to review and implement federal and state guidance from the Centers for Disease Control (CDC), Occupational Safety and Health Administration (OSHA), Environmental Protection Agency (EPA), as well as state and local emergency orders.
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Ensure CDC and OSHA guidelines on safe workplaces, employee screening, and safety are implemented and record how and when guidelines were implemented. For example, document employee’s answers to COVID-19 screening questions and their temperature when arriving to work.
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Document information used to make decisions related to COVID-19 and retain copies of applicable guidance. Guidance is constantly updated and changed by government entities, retain versions of referenced guidance and document rationale behind policies.
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Frequently communicate with employees and managers to be sure they are aware of working conditions, health and safety measures, and expectations. This may lessen litigious feelings and will also serve as warning or notice.
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Review workers’ compensation laws – it may be that litigation is pre-empted.
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Evaluate and negotiate with insurance companies to provide expanded coverage.
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Assess business efficiencies to determine if less people are needed for a particular job or shift. Determine how to best limit capacity and increase social distance.