Employers, landlords and any party potentially subject to a premises liability action would be well advised to consider the consequences when COVID-19 is contracted on their property and then spread from the infected party to a family member.
A new lawsuit highlights the unresolved intersection between traditional tort law duty analysis and the expansive view of foreseeability in so-called secondary exposure torts to address the scenario where COVID-19 was allegedly brought home from work, with tragic consequences.
In the action recently filed in Kane County, Illinois (a Chicago “Collar County”), the Estate of Esperanza Ugalde seeks damages for her wrongful death, which occurred after she purportedly contracted the virus from her husband, a butcher at a local meatpacking plant.
The Complaint recites various purported wrongdoing by the meatpacker, including not enacting a COVID-19 prevention plan, failing to provide its employees with personal protective equipment (PPE), and failing to take measures consistent with Centers for Disease Control (CDC) guidelines to mitigate the spread, such as disinfecting the plant or enforcing social distancing on the work floor, after it became aware that employees had contracted the virus.
The Complaint alleges that Esperanza died four days after her husband contracted the virus.
Thus, this case necessitates a traditional tort analysis involving an assessment of the defendant’s legal duties and the foreseeability of plaintiff’s injuries, in the context where the injured party was not an employee of the defendant and was not present at the allegedly unsafe workplace.
Illinois courts look at four factors to determine whether a duty ran from the defendant to the plaintiff: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant. Stearns v. Ridge Ambulance Serv., Inc. 2015 IL App (2d) 140908, at 10.
A line of Illinois cases, which could materially impact the success of this claim, involve secondary exposure to asbestos. There, as in this case, it was alleged that the defendant failed to prevent a dangerous workplace exposure and that it was foreseeable that the exposure would extend to family members, who were not employees.
In Simpkins v. CSX Transp., Inc., 2012 IL 110662, 965 N.E.2d 1092, at issue was the plaintiff’s claim that her mother died from injuries incurred...
