The COVID-19 pandemic has led to the filing of numerous lawsuits on a wide range of legal theories.

While we wait to see how Florida courts will address these lawsuits, this article will focus on how Florida courts have grappled with cases alleging negligent transmission of sexually transmitted diseases (STDs) and how personal injury claims like these may inform upcoming COVID-19 rulings. As businesses begin to reopen, they should consider the health risks and potential legal liability:

Duty of Care

Whether an individual or business owes a duty of care to others presents a legal question for the judge. The judge will ask whether it is foreseeable that the defendant's alleged conduct or inaction creates a zone of risk posing a general threat of harm to others. Persons with a known STD have a duty to either avoid sexual contact with uninfected persons or, at least, warn sexual partners of the infection before engaging in sexual contact.[iii] This duty is triggered by the infected person's knowledge that he or she harbors the disease and can infect others by sexual contact. Without such knowledge, the risk created by sexual activity is unforeseen. "Knowledge" in this context means actual knowledge (when a defendant has been diagnosed with a STD by a healthcare provider) or constructive knowledge (when a defendant exhibits obvious STD symptoms; should have known).[iv]

The symptoms of COVID-19 are more general than STD symptoms and usually appear 2-14 days after exposure. People often do not know they have been exposed. According to the Centers for Disease Control and Prevention, emergency warning signs requiring immediate medical attention include trouble breathing; persistent pain or pressure in the chest; new confusion or inability to arouse; or a bluish lips or face. COVID-19 symptoms also include common conditions that are not specific to that infection, e.g., a cough, shortness of breath or difficulty breathing. Additionally, persons with at least two of the following symptoms may have COVID-19: fever; chills; repeated shaking with chills; muscle pain; headache; sore throat; new loss of taste or smell. Millions of Floridians experience these symptoms and are potential transmitters of COVID-19. Unlike STDs, COVID-19 spreads easily, mainly through respiratory droplets produced when an infected person coughs, sneezes or talks. The infection can also spread when a person touches a surface or object that has the virus on it, and then touches his mouth, nose or eyes.

Based on the infectious nature of COVID-19, Florida courts are likely to find that COVID-19 infected individuals and those exhibiting symptoms owe a legal duty to take reasonable precautions to avoid infecting others. As businesses are generally legally responsible for the actions of their employees, they may need to monitor the COVID-19 status of their employees, customers and invitees to meet this duty of care.

Breach of Duty

After establishing the legal duty, plaintiffs must prove a defendant breached the duty of care owed by negligently spreading the virus. Plaintiffs typically allege that a defendant failed to follow a governmental guideline or other reasonable precaution that would have ensured protection from exposure or that the plaintiff was not adequately warned that one or more of the defendant's employees or customers was infected or had COVID-19 symptoms. The issue of breach is a jury question to be decided under the preponderance of evidence burden of proof, i.e., whether it is more likely than not that the defendant breached the duty of care owed to the plaintiff.

Causation

Plaintiffs must also prove by a preponderance of the evidence that a defendant's breach caused the plaintiff's COVID-19 infection. Any amount of evidence suggesting a causal connection between the plaintiff's exposure and the defendant's breach would likely be sufficient for the case to be presented to a jury, although to prevail a plaintiff would have to prove that it is more likely than not that the defendant caused the plaintiff's infection.

In outbreak situations, like those involving some cruise ships, nursing homes and meat packaging plants, causation will be easier to prove. In nonoutbreak situations, plaintiffs will have difficulty because the ease by which COVID-19 is transmitted means a defendant may be able to establish that virus exposure likely occurred from sources other than the defendant.

Damages

In cases where plaintiffs successfully establish the other elements for negligent transmission, juries can award economic and noneconomic damages. Economic damages are financial losses from the defendant's negligence: medical bills, lost wages, etc. Noneconomic damages are more difficult to measure and can be subjective: pain and suffering, emotional distress, etc. Some individuals with COVID-19 infections do not experience symptoms or suffer pain. Plaintiffs in these cases may claim damages for their emotional distress caused by the infection and the stress and fear of infecting others.

Florida law limits the cases in which plaintiffs can recover emotional distress damages.  Emotional distress damages are recoverable only if a plaintiff's emotional distress flowed from a physical impact. See Jones v. Utica Mutual Ins. Co., 463 So.2d 1153, 1156 (Fla. 1985). The "impact rule" bars plaintiffs from recovering for purely emotional injures unless the claim falls within one of the rule's recognized exceptions. The rationale for the impact rule is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims. See Gracey v. Eaker, 837 So.2d 348, 355 (Fla. 2002).

In cases involving negligent transmission of COVID-19, courts may be asked to address whether exposure to a virus constitutes an impact. While no case appears to be on point, Florida courts have found sufficient impact where plaintiffs inhaled asbestos particles, received an invisible electric shock, and were exposed to penetrating gamma radiation. See Eagle-Picher Industries v. Cox, 481 So.2d 517, 527 (Fla. 3d DCA 1985), review denied, 492 So.2d 1331 (1986) (inhalation of asbestos particles); Clark v. Choctawhatchee Electrical Co-op, 107 So.2d 609, 611 (Fla. 1958) (sufficient evidence that plaintiff experienced an invisible electric shock); Jerue v. Drummond, Case No. 8:17-CV-587, 2018 WL 7461683, at *18 (M.D. Fla. Apr. 19, 2018) (plaintiffs exposed to penetrating gamma radiation from under their home). Based on this precedent, it is foreseeable that in a proper case a Florida court would find sufficient impact from negligent transmission of COVID-19 to allow a jury to award emotional distress damages.

In conclusion, negligent transmission of COVID-19 appears to be viable in Florida and businesses should take reasonable precautions to ensure that its employees, customers, or invitees infected with, or having symptoms of, COVID-19 do not infect others.

Michael J. Bittman is board certified as a specialist in health law and in health care compliance and is a partner at Nelson Mullins. He may be reached at [email protected].