The novel coronavirus (or “COVID-19”) poses unprecedented challenges to the social contract in the US and around the world. At home here, large numbers of Americans are sheltered inside and will be for an extended period of time. Feeding and caring for the needs of these Americans puts an unusual and unplanned burden on supply chains and retailers – not just for delivery giants like the big online retailers, but also for local supermarkets and restaurants. COVID-19 thus not only threatens our health, it also sets standards for our individual and collective rights and obligations, including the role of the legal system and possibly the standards for resolving disputes related to product liability and tort law.
CORONAVIRUS REALITIES RELEVANT TO THE LIABILITY OF THE PRODUCT
Presumably, many, if not all, readers have at least a basic understanding of the global spread of COVID-19 – a predicate for discussing the potential risks of strict liability and tort. Current medical evidence suggests that COVID-19 can be contagious before a person knows they are infected. A contract can have an extended incubation period, in some cases weeks. The CDC has further confused public health efforts, estimating that up to 25 percent of people who contract the virus may have no symptoms at all and inadvertently spread the virus because they believe they are healthy.
Perhaps the most alarming aspect of this virus is that infections are not limited to face-to-face contact. The virus can survive for days on surfaces outside the human body, exposing other infections. A study recently published in the New England Journal of Medicine found that COVID-19 can live up to 24 hours on cardboard surfaces and up to 72 hours on plastic, further helping the spread of explosives around the world and increasing the risk of contaminating products .
Countless people around the world have followed warnings from public health experts and implemented shelter-in-place practices. They work or continue their education from home and only venture outside when absolutely necessary. With this dramatic change in daily life, more and more people are turning to internet-based delivery services, particularly for food delivery and restaurants. While there is currently no evidence that the virus is spreading through food or drink, the bags, boxes, and other containers in which these supplies are transported could also carry the active contagion on their surfaces – even if the contaminating contact occurred days earlier was.
POSSIBLE LITIGATIONAL QUESTIONS
As the nature and extent of the virus become clearer over time, we can expect litigation to spike after COVID-19, with potentially contaminated food packaging asserted in many cases. These cases present unique evidence challenges that are not always present (or analogous) in the established case law on contaminated food. For example, there are characteristic incubation times and symptoms for food-borne pathogens such as Salmonella and E-Coli, while COVID-19 is an elusive incubation period and may not always manifest itself with consistent symptoms. Determining the cause of the infection, whether in a densely populated urban center like New York City or even in rural areas, will not be easy on the normal course. Alternative causality arguments will abound, especially since many of the people who have contracted COVID-19 are and are asymptomatic yet contagious. Proving the causation is therefore likely to be the most common challenge facing plaintiffs bringing lawsuits against key suppliers, distributors and retailers.
In the area of product liability, the presence of an unexpected contaminant (e.g. a virus) can often be viewed as a deficiency under the laws of most states. When a food or drink is sold that is intended for human consumption, an implicit guarantee is usually imposed on the manufacturer that the product will be safe for human consumption and free of harmful or unhealthy substances when it leaves the manufacturer’s control. Of course, a plaintiff must demonstrate the existence of the defect at the time it left the defendant’s hands. Questions of due diligence are usually irrelevant, as are questions as to whether the deficiency can be remedied with reasonable care. This is a form of manufacturing defect in the true “no-fault liability” category.
In the area of premise liability, new questions of negligence are also being asked, which are based on the existing standards of reasonable care. What steps need to be taken to maintain social distancing in the store aisles and at the registers? Do employees have to wear gloves? Masks? Should stores have special shopping hours for the most vulnerable populations? Should stores even continue to use a self-service model (such models are a relatively recent innovation – around 70 years old) or just use roadside pickup and / or home delivery?
Similar questions are asked by retailers in sales and delivery. If boxes and plastic surfaces can hold back COVID-19 contagion, should these surfaces be wiped before putting them on the van? Should they be wiped again before they are on the homeowner’s front door? Given that many more people are now dependent on delivery services – including health care providers and those already sick – would the additional requirement result in a degradation in efficiency that would do more harm than good? Given the current unprecedented shortage of disinfectants, should hospitals and other health care facilities be given priority in distributing these vital materials?
Which sovereign (if any) should set the minimum standard for care in view of the sometimes contradicting information from the federal and state governments? What guidelines should companies follow? And if they follow different guidelines for their own employees or managers than they do for their customer base, what conclusions could be drawn? Hospitals and nursing homes may be subject to higher standards of care as they house the most vulnerable. However, vendors may still receive conflicting information about what these standards should be.
Legal immunities may need to be considered for care providers, including nursing homes. In New York state, the U.S. epicenter of the crisis at the time of this writing, there is concern that volunteers can help identify and treat affected individuals without worrying about tort liability.
Perhaps the most interesting question concerns the “duty to warn”. If there is a COVID-19 case at your workplace, the premises may be closed for a certain period of time. Then what is the landlord’s duty? Does the entire building need to be notified? Or be given the option of isolation? If an online retailer has a COVID-19 case in a delivery fulfillment center, is there an obligation to inform customers that their shipment has come from a potentially contaminated warehouse? When a service company like a yoga studio or gym has a case, do they need to notify everyone who has occupied that room? How should the notification campaign be carried out?
Given the growing ethos of taking personal responsibility to reduce the spread of the virus through disinfection, hand washing, and social distancing, questions of culpable behavior will almost certainly arise in these cases. But what behavior would lead to culpable behavior? Would it depend (at least in part) on the number of then-known cases in the area and / or the social distancing mandates that then apply at that location? Appropriate care is the measure of duty.
We have barely scratched the surface of the potential distribution chain and liability issues arising from the current national crisis. While the basic questions may remain without definitive answers for some time, business leaders may want to carefully follow their written guidelines, employee training, supplier contracts, and public communications in order to find many potential sources of evidence in future cases. Even if the constantly changing recommendations and mandates from the federal and state governments determine a minimum level of appropriate behavior, companies can also pay attention to what competitors are doing. Industry practice can serve to raise the bar for acceptable behavior, often when practices are challenged in front of juries.
Stay tuned as we strive to keep you updated on developments relevant to these business critical issues.
3. https://www.npr.org/sections/health-shots/2020/03/31/824155179/cdc-director-on-models-for-the-months-to-come-this-virus-is- be with us
5. UCC 2-314; Mockery of South Shore Servs., 141 AD2d 504 (2nd Dept. 1988).
6. Tardella v RJR Nabisco, Inc., 178 AD2d 737 (3rd Division 1991); Kotiadis v Gristede Bros., 20 AD2d 689, 690 (1st division 1964).
7. E.g. Basso v. Miller, 40 NY2d 233 (1976).
8. E.g. emergency standards adopted in New York – https://www.wsj.com/articles/new-york-moves-to-shield-doctors-from-lawsuits-while-fighting-coronavirus-11585868982.