Coronavirus and Personal Injury: Do you have a claim?

If you have COVID, do you have a personal injury claim?

Many people wonder whether if they or a loved one contracts Coronavirus, they have a personal injury claim. The short answer is perhaps but a number of conditions have to be met for such a claim to be viable and if they recover from their illness without incident, the value of their damages does not justify making a claim.

There is no specific law as yet on Coronavirus personal injury. There is a potentially analogous statute, Fla. St. §384.24  which makes it a crime to knowingly have sexual intercourse when infected with a sexually transmitted disease such as HIV unless the other person has been told and consents. Violation of this statute is evidence of negligence in a negligence injury claim. While there is no similar statute concerning other communicable diseases, such as the Coronavirus,  the underlying principle may apply to a negligence personal injury claim for contraction of Coronavirus. Negligence is the failure to use reasonable care under the circumstances.

Whether something is unreasonable depends on the specific circumstances or facts. What may be reasonable in one set of circumstances may be unreasonable in another. In order to successfully bring a Coronavirus personal injury negligence claim, the infected individual will have to establish that the person who infected them knew they were infected and acted unreasonably under the circumstances. So, for example, if someone knows they have Coronavirus, does not follow social distancing, does not cover their mouth when they cough and coughs right onto the infected individual, these facts may be sufficient to make a Coronavirus personal injury negligence claim.

This is an uncharted area and there is no assurance that even with the best set of facts, the courts will recognize and allow such a claim. Lawyers have a saying, “bad facts make bad law.” The Coronavirus pandemic is a worldwide health crisis. While contraction of the virus through negligence  would seem actionable, there may be resistance to imposing liability on individuals and businesses for what is perceived as the inevitable spread of the disease. To successfully prosecute such a claim, expert testimony will likely be required and competing testimony about the inevitability of the disease spreading versus the preventability with reasonable precautions will be a centerpiece of such testimony. In order to prevail, an injured individual will have to establish to a reasonable degree of medical certainty that had the individual or business acted reasonably under the circumstances, the infected individual would not have gotten ill. This may be a difficult burden to meet given the highly contagious nature of the Coronavirus and its propensity to rapidly spread.

Assuming negligence is established, an injured individual must also prove they suffered actual damages. For example, there were a number of claims brought by individuals who were inadvertently stuck with a needle and feared contraction of HIV. The courts concluded that fear alone was not actual damage, even though it was caused by negligence. Similarly, fear of contracting Coronavirus from having been negligently exposed is not actionable. Individuals who contract Coronavirus and recover may have damages but in most circumstances they will not be significant enough to warrant bringing a claim. On the other hand, for those who suffer longstanding, permanent effects from the disease or die, they or their loved ones may have a personal injury claim for negligent contraction of Coronavirus.