Covid-19 is a mild to severe respiratory illness that is caused by a coronavirus,
which is transmitted mainly by contact with infectious material (such as
respiratory droplets) or with objects or surfaces contaminated by the causative
virus, and is characterized especially by fever, cough, and shortness of breath
and may progress to pneumonia and respiratory failure.
With the recent and sudden outbreak of this virus, there have a number of
reported cases where infected people or virus carriers have put other
individuals at risk. An example of such a case includes Indian singer Kanika
Kapoor, who continued to attend various events despite being advised to be
quarantined. In another case, two travellers who tested positive for COVID-19
decided to travel to an island in the Jeju Province of South Korea. A group of
114 members of the Chabad Lubavitch Hasidic group flew from New York to Israel,
and upon arriving in Israel, at least 65 of those passengers tested positive for
Can people infected with COVID-19 sue the people who transmitted the disease to
them for negligence, even if those people did not do so knowingly? Lack of cases
and judgements in the area connecting tortious claims and the spread of the
coronavirus, brings us to this article.
Although it has not been determined whether a cause of action can exist for
negligently transmitting COVID-19 , it seems that the individuals should be held
liable, as they had knowledge or reasonably should have had knowledge that they
were carriers of the virus; those people had a duty to prevent transmission of
There are three essential elements to establish a cause of action for
negligence. A plaintiff must establish that:
- the defendant owes him or her a duty;
- there was a breach of that duty; and
- damages resulted from such breach.
Duty to Prevent the Transmission of COVID-19
To determine whether there is a duty, various factors are considered, such as
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, etc. [i]
The law of Torts has not yet answered whether contracting COVID-19 during a
flight, private event, work out in the park, or grocery store constitutes harm,
but courts have discovered causes of action for negligently transmitting
diseases. In the case of Billo v. Allegheny Steel Co.
[ii], it was held that:
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.”
In several other
situations, courts have allowed lawsuits for the negligently transmitting
diseases based on both actual and constructive knowledge and thereby imposed
liability on those who have harmed others, as in the case of John B. v. Superior Court
[iii] where 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 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.
In the cases mentioned above, the infected either had knowledge or had reason to
know that they are carriers of the virus by developing symptoms or having close
contact with other infected individuals. In spite of that, they decided to act
in a way that put other individuals at risk.
In Hendricks v. Butcher
[iv] it was said that “any one afflicted with
the disease of smallpox, which is known by everyone to be a highly contagious
disease, owes to everyone the duty to so conduct himself as not to communicate
this disease to them after he becomes aware that he is afflicted with it.
Kliegel v Aitken[
that it is well established that one, who negligently- that is, through want of
ordinary care exposes another to an infectious or contagious disease, which such
other thereby contracts, is liable in damages therefore, in the absence of
A Breach of Duty
After establishing the existence of a duty, the next important element to prove
is the breach of such duty. A defendant breaches such a duty by failing to
exercise reasonable care in fulfilling the duty. In the case of COVID-19 it
occurs when a person who has tested positive for COVID-19, or a person who has
symptoms of COVID-19 leaves his or her house and visits public areas or uses
public services. Since the risk of transmitting and catching the virus is high,
if the infected person leaves the house knowing or suspecting that she or he is
infected with COVID-19, then he or she breached the duty to prevent its
This standard of care required is a matter of law and varies
according to different circumstances. With considerable media coverage and
exposure to information about COVID-19, the argument that a person would not
know or suspect that they were infected with COVID-19 is invalid.
Element of Causation/ Casual Connection
In cases of negligence, the plaintiff must prove that the actions of the
defendant was the cause of the plaintiff's injury. It is also referred to as the
but-for causation, meaning that, but for the defendant's actions,
the plaintiff's injury would not have occurred. But, the causation in cases of
transmission of the virus, it may be hard to prove that the infected individual
was the proximate cause of the disease in other people, especially since it is
proven that the virus can remain on surfaces for days.
It is much easier to
trace causation for cases where the mode of transmission may be direct contact
or through body fluids. But, it can be traced by looking into various things
like travel history, people who the victim was in contact with, places he
There are cases where a person intentionally or deliberately coughed or spit on
a person to spread the disease. This is the intentional tort of battery. The
occurrences of such batteries are rare, but they have occurred. Batteries are
both torts and crimes. If the victim is rapidly tested and is positive for
coronavirus, causation may be inferred.
The last and final element is to prove damages suffered by the plaintiff.
Damages may be in the form of pecuniary losses which include the plaintiff's
high medical expenses or non-pecuniary losses, which include the plaintiff's
severe physical pain and suffering, which may ultimately lead to death as mental
strength is proven to be a major factor to survive the coronavirus.
The spread of COVID -19 has undoubtedly been one of the most challenging times
for all countries and since the rise in cases are distressingly high it is the
responsibility of each and every individual to act reasonably when they have
knowledge of being exposed or infected or are likely to be infected or exposed
with the disease. Negligent people must take proper precautions or be held
accountable for their actions.
- Rowland v. Christian (1968) 69 Cal. 2d 108
- (Pa. 1937) 195 A. 110
- (2006) 38 Cal. 4th 117
- 129 S.W. 431, 144 Mo.App. 671
- 94 Wis. 432 (1896)