https://blog.petrieflom.law.harvard...gligence-liability-for-covid-19-transmission/
If we were to approach the potential defendants from the cases mentioned above, they would likely to argue that they have a “right to travel” or a “right to go to an event.” In
Hohfeldian terms, they would assume they hold a “Privilege-Right,” and thus, have no duty to others. Such arguments should be rejected.
To determine whether there is a duty, courts typically consider different factors, among them “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved” (
see Rowland v. Christian (1968) 69 Cal. 2d 108).
Tort case law has not yet provided an answer to whether contracting COVID-19 during a flight, private event, work out in the park, or grocery store constitutes harm. However, courts have long recognized a cause of action for negligently transmitting other diseases.
“To be stricken with disease through another’s negligence is in legal contemplation as it often is in the seriousness of consequences, no different from being struck with an automobile through another’s negligence” (see Billo v. Allegheny Steel Co. (Pa. 1937) 195 A. 110).
In several states, courts have allowed lawsuits for the negligent transmission of diseases based on both actual and constructive knowledge and imposed liability on individuals who have harmed others (see, e.g., Earle v. Kuklo, 26 N.J. Super. 471, 475, 98 A.2d 107 (1953); Mussivand v. David, 45 Ohio St. 3d 314, 544 N.E.2d 265 (1989); Berner v. Caldwell, 543 So. 2d 686 (1989)). In the case of John B. v. Superior Court (2006) 38 Cal. 4th 117, for example, the California Supreme Court determined that the burden of a duty of care is “on defendants who know or have reason to know of their HIV infection is minimal, and the consequences for the community would be salutary.” The Court argued that the “tort of negligent transmission of HIV does not depend solely on actual knowledge of HIV infection and would extend at least to those situations where the actor, under the totality of the circumstances, has reason to know of the infection.”
Because both the likelihood of the transmission of COVID-19 and the severity of the risk and illness associated with it are
high and there is also a public policy to prevent its spread, SARS-CoV-2 carriers owe a duty to other individuals, particularly to those in close proximity. As the different cases previously described show, the infected individuals either knew or had reason to know that they are carriers of SARS-CoV-2 — they developed symptoms or had close contact with other infected individuals. Despite that, they decided to act in a way that puts others at risk.