Probably not. While it is true that there are approximately 1.35 million licensed attorneys in the United States (https://www.statista.com/statistics/740222/number-of-lawyers-us/#:~:text=The%20total%20number%20of%20lawyers,2015%20figure%20of%201.3%20million.)—that is 1 attorney for every 242 residents—and that some are estimating nearly 1,000 coronavirus-related lawsuits filed to date (https://www.cnbc.com/2020/05/20/as-us-reopens-prepare-for-flood-of-coronavirus-workplace-lawsuits.html),[1] it is unlikely that coronavirus workplace-related claims are going to overwhelm the legal system, even without specific statutory protections to limit employer liability.
Understanding Liability
When lawyers and politicians discuss coronavirus-related litigation, they are typically referring to negligence-based legal actions. Liability protecting statutes do not protect people from their intentional torts[2].
All negligence actions are composed of the same basic elements. The first element to a negligence action is establishing a “duty.” In this context, the relevant question, broadly stated, is “Do employers have a duty to keep employees safe?” Certainly, they do. But they cannot keep employees safe from all known and unknown dangers in the workplace. It would be impossible. Consequently, the level of care or duty that the law imposes is one of “reasonableness.” How would a reasonable [employer] act in this situation.
The debate over liability-limiting laws asks: should employers have a duty to keep employees safe from contracting the coronavirus in the workplace [before ever reaching the question of reasonableness]? That is a policy question for the legislature to decide. I am here to tell you that even without liability limiting statutes, these lawsuits may not be flooding the courthouses in the manner some media outlets are predicting.
Causation. Considered the most difficult elements to establish in a negligence action, this is where most lawsuits die: cause-in fact and proximate cause (legal causation). Lawyers will have a very difficult time proving by a preponderance of the evidence (that is convince a judge or jury that more likely than not) his or her clients contracted the virus as a direct and proximate cause of the employers’ negligence (or failure to observe some reasonable standard of conduct when it had a duty to do so). Introducing evidence that establishes the virus was more likely than not contracted in the workplace and “but for” the employer’s negligence, the employee would not have contracted the coronavirus seems like a near impossible task (see Florida Standard Jury Instructions 401.12 Legal Cause). The incubation period for the coronavirus is two weeks, which can place our would-be plaintiff anywhere. Additionally, one of its principal characteristics of this virus is that it spreads quickly and, therefore, is easily contractible. Arguing that “but for the employer’s negligence . . .” starts to look like an indefensible position in the face of an evidentiary hurdle that is impossible to overcome.
Now, you may be concerned that by the time you have disproved causation or moved for summary judgment on the issue, you have spent tens of thousands of dollars in legal defense. This is the concern, after all, right? Frivolous lawsuits brought in the hopes that some companies will pay in order to avoid litigation.
Some companies may reach settlements in the face of legal costs, stress, and focus being pulled from operating the business. Below are three concepts that may serve as deterrents to most lawyers who might be tempted to file these types of lawsuits.
Florida Statute Section 57.105. This statutory section was enacted to deter frivolous litigation. Its efficacy and its consequences may be a matter of debate, but it can certainly change the cost-benefit analysis of litigation. The statute awards reasonable attorney’s fees to be paid in equal amounts by the losing party and his or her attorney for filing and maintaining a frivolous case.
Once cases are brought under this theory of Coronavirus workplace negligence and defeated due to the inability to overcome causation, the resulting body of case law will serve as the basis for 57.105 motions. The attorney filing the case would have known “or should have known [based on the prevailing case law] that a claim or defense when initially presented to the court or at any time before trial . . . was not supported by the material facts necessary to establish the claim or defense; or . . . Would not be supported by the application of then-existing law to those material facts.” Fla. Stat. § 57.105(1). Faced with the prospect of paying the other side’s attorney’s fees, attorneys and would-be litigants will likely be deterred.
Contingency Fees, Statutory Fees, and Prospects of No Payday. Most attorneys weighing the likelihood of success and, ultimately, the likelihood of obtaining compensation may refuse to take on this type of litigation at the outset.
Lack of Insurance Coverage. Likewise, there is speculation as to whether coverage under general liability and Florida Workers Comp insurance policies extends to such claims, which directly impact an attorney’s ability to be compensated.
Florida Statutes Section 440.151, “Occupational Diseases”, excludes employers from liability unless: (1) the disease resulted from the nature of the employment; (2) was actually contracted while so engaged; and (3) the nature of the employment was the major contributing cause of the disease. Still, some attorneys believe this exclusionary provision may not apply if the proves that the risk of contracting the disease was higher for the employee than for the general public. It is pretty safe to conclude that the nature of the current COVID-19 pandemic probably excludes most, if not all, businesses from this type of liability, especially since “major contributing cause” must be shown through “medical evidence only.”
Faced with defeat at causation, push-back by corporate attorneys, and 57.105 Motions for Sanctions, the cost-benefit analysis for plaintiffs’ firms shifts significantly. If greed is a powerful motivator, the high likelihood of being unrewarded may prove to be the most powerful deterrent against these lawsuits.
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[1] This post is a direct response to that article. Also, please note that the number referenced in the article includes insurance claims, unemployment claims, workers’ compensation actions, and breach of contract actions)
[2] Business should first determine whether they should resume on-site operations, the conditions, and procedures that should be applied. The CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/workplace-decision-tool.html?utm_medium=email&utm_source=govdelivery, WHO, https://www.who.int/emergencies/diseases/novel-coronavirus-2019?gclid=EAIaIQobChMIu_qkyYjs6QIVA4bICh1B0AD6EAAYASAAEgJvwfD_BwE and SBA, https://content.govdelivery.com/accounts/USSBA/bulletins/28f268b, have published materials to guide businesses.