Someone on Facebook posted something I disagreed with the other day. I know what you’re saying, “That happens to me all…the…time!” And I’m sort of glad it does! Posts I disagree with give my brain more exercise than posts I agree with. Sometimes I lie awake at night going over aspects of my argument in my head. For the most part, these resemble conversations with myself.
Me: “There is no way that you have to be either a dog person OR a cat person. What if you just love all animals?
Other Me: “That’s just a false dilemma!”
(A false dilemma is usually characterized by “either this or that” language but can also be recognized by an omission of choices.) The post that got me thinking the other day went something like this:
“I can’t believe that people think we should be responsible for the health of others!”
Poster on Facebook who lives in a vacuum. (Note: not the cleaning kind)
The rant continued longer than this and there was of course the necessary pre-rant warning. But what the poster eventually expressed was that she didn’t think she should have to wear a mask. If she transmitted Covid19 to someone else it wasn’t her fault they got sick. The government was making her wear a mask in order to protect OTHERS from getting a virus. And the poster acted like this was the first time in her life (she’s in her 40’s) that she had ever encountered such a concept in America. It made me wonder if the poster had ever heard of laws against driving under the influence. Sure, that law is to protect the drunken fool from smashing up their car and themselves. But it is mostly meant to protect the family of four with the stick-figure-stickers on the back of their minivan. This, my oblivious poster, is a law that forces us to avoid an activity that could potentially be harmful to the health of another.
And hitting a point more close to her gripe — schools require us to have certain vaccinations in order to prevent us from getting a communicable disease and spreading it to others. But in general, do we really want people with tuberculosis preparing our BigMac? This is an example of the government literally mandating you to be responsible so that your choices, your liberty, don’t adversely affect the health of others. When you don’t want to be “responsible for the health of others” once-thought-eradicated viruses like measles return. And apparently so has the Bubonic Plague.
Are We Our Brother’s Keeper?
But why, you might ask, do we have to be compelled to be thoughtful about the well-being of our fellow citizens? There are laws to compel thoughtfulness because at some point, so many people only thought about themselves that it became an important governmental interest to protect the innocent victims of the thoughtless acts from those self-centered people.
For those of you who are religious folks out there, this concept goes back to a Biblical story in Genesis. And for those of you who aren’t, it’s a story worth knowing. Cain and Abel were brothers and the first two sons of Adam and Eve. Cain was the firstborn and was a farmer. Abel was a shepherd. Both brothers regularly made sacrifices to God from their abundance. Cain offered up produce and Abel offered up livestock. God preferred Abel’s offerings more. When Cain learned this, he became jealous and murdered his brother. “And the Lord said to Cain, ‘Where is Abel your brother? And he said, ‘I do not know: am I my brother’s keeper?’ Can you picture the little brother saying in a sarcastic tone, “How should I know where he is? Am I responsible for my brother?” (insert eye roll emoji here)
DISCLAIMER: I’m not an attorney. Nor do I play one on T.V. I’m a law student. The discussion that follows is not advice nor intended to be so. I’m demonstrating how the elements of a negligence claim could apply to Covid19. If you need legal advice, you should contact an attorney licensed to practice law in your state.
We Owe a Duty to Others
In law, we are often considered “Our brother’s keeper.” This is known as a duty or a duty of care. It’s not a duty in the military sense, but means an obligation or responsibility. It suggests that, in many instances, we have a duty of care when dealing with others. And this duty is one of the first elements of proving a negligence claim against someone who has harmed you. The elements include (in this order):
1. The defendant owed the plaintiff a duty 2. That duty was breached 3. There’s a reasonable causal connection between the defendant’s conduct and the plaintiff’s harm 4. The plaintiff suffered damages.
According to an excellent online resource, it is “The responsibility of a person or organization to take all reasonable measures necessary (like wearing a mask) to prevent activities that could result in harm to other individuals and/or their property.” – LegalDictionary.net
The easiest way to establish that someone has a duty of care is through the laws currently on the books. For example, the law in your city states that you must keep your trees trimmed around street corners so motorists can see oncoming traffic. You have a duty of care owed to motorists on your street to keep your trees trimmed so they can see. But what if there isn’t a law that states what your duty of care is?
Duty of care may be considered from aspects of a social contract. A social contract argues that individuals have agreed (explicitly or implicity) to surrender some of their freedoms and submit to the authority (here, the government) in exchange for protection of their rights or maintenance of societal order. For example, you surrender your freedom to blow through red traffic lights in exchange for an ordered and efficient traffic system. Further benefits include a government that will protect you and prosecute wrongdoers. Or one might owe a duty of care to wear a mask in public so that they don’t spread a virus.
Breaching Our Duty
Once it is established that you have a responsibility (based on law or societal contract) to prevent harm to others, the next step in a legal analysis is to determine if you’ve breached that duty. A breach of a duty to prevent the transmission of a deadly-communicable disease would occur if you knew or had reason to know that you had Covid19 and visited areas where you could spread this to others. Because the disease is easily transmitted via droplets in our saliva, it is extremely likely that being in contact with others will spread the disease. Unfortunately, ignorance is not a legal defense. And even if it were, the conventional media outlets, social media and other informational sources like the CDC have been airing non-stop commentary about symptoms and techniques to avoid spreading the virus since March. We have also seen how other countries have responded to the outbreak and steps they’ve taken. It would be difficult to argue that you didn’t breach your duty when you left your home and didn’t take the worldwide-accepted precautions to avoid endangering others.
And not believing that the precautions work or that the virus isn’t as contagious as they say it is doesn’t relieve you of your duty to protect others from contracting it. Again, ignorance is not a legal defense.
Causation
This is the element of negligence that would be insanely difficult to prove. Let’s say Karen has Covid19 and heads to a restaurant. While she’s there she comes in contact with the hostess, her server and a couple of people exiting the bathroom. She chats up an elderly woman at the salad bar. That elderly woman contracts Covid19 and dies three weeks later. How do you prove that Karen was the one who infected her? She could have gotten the virus from hundreds of people she came in contact with. In order to fulfill all of the elements of a negligence claim, you must show that Karen’s breach (leaving the house and not taking reasonable precautions to prevent the spread of the virus) was the proximate cause or the REASON the elderly woman got sick. A stronger case would exist if the number of people the elderly woman was exposed to was minimal.
Damages
Damages for this kind of negligence claim would be easy to prove. The elderly woman might have medical bills due to hospitalization and weeks on a ventilator, loss of wages, physical and emotional pain and suffering of her and her family and ultimately her death. If the elderly woman doesn’t die she could still suffer reduced lung capacity for the rest of her life.
Defenses for Karen
In order to mount a defense against a negligence cause of action, the various elements will need to be defeated or refuted. To begin with, the defendant would have to offer evidence that he/she did not owe a duty of care. Using the above scenario, Karen would have to show that she had no legal obligation or societal obligation to keep her virus-ridden self away from the elderly woman and others. If a governor or other local legislator issued any kind of stay-at-home order or mask mandate, this might satisfy the legal obligation. If no legal obligation were in place, Karen might have a defense in that she didn’t owe any kind of societal duty not to spread a contagion. This would likely be her best defense due to the large amount of society that believes the same thing.
Karen would next argue that she exercised reasonable care when going out to the restaurant. Since Karen wasn’t wearing a mask and wasn’t social distancing, I’m not sure what she would argue here. *As an aspiring attorney I should be able to come up with defenses for her because it’s important that we are able to argue both sides of an issue. But alas, I’m at a loss.
The best defense Karen would have in the elderly woman’s death would be causation. It would be very difficult, in a bustling restaurant, to name Karen as the host that infected the elderly woman. If any other person interacted with the elderly woman and was positive, Karen could argue that they were the ones that gave her the virus. This could cast serious, case-ending doubt, on who was the cause of the virus transmission.
The last thing Karen would want to argue to mitigate any award that the elderly woman’s family might receive is comparative negligence. This is where parties both assume partial blame and the trier of fact determines how much blame to assign either side. Karen could argue that the elderly woman knew or should have known that her age group was specifically susceptible to the virus. The elderly woman should have stayed at home. Because she carelessly came out to the restaurant, she placed herself in avoidable risk of danger.
Last Words
What I’ve written isn’t legal advice and I haven’t researched any negligence case law on spreading diseases — although there are some out there that deal with A.I.D.S transmission. In an adversarial society such as ours, I would bet we’ll see lawsuits alleging a negligent transmission of Covid19. I’m interested to see how the courts rule on these cases and specifically how they trace causation.
We don’t live in a vacuum. We are responsible for our acts that affect us and also ones that affect other people. That’s sort of how a society or a community works — we are all interlinked and interdependent. Whether we want to believe it or not, our society is built on generations of laws that have solidified this idea. They protect the innocent from those who would maliciously or ignorantly cause them harm. And they protect us from the myopic and selfish. And thankfully, laws mandate that, yes, we are our brother’s keeper.