Filing a Wrongful Death Lawsuit for COVID-19

Can You File a COVID-19 Wrongful Death Lawsuit?

As of July, 2020, over 146,000 people across the United States have died from COVID-19. Many of these deaths may be due to the negligence of someone else. As a result, we can expect many wrongful death lawsuits filed in the coming months and years.  

When a COVID-19 Wrongful Death Lawsuit Can Arise

Wrongful death lawsuits may arise in numerous different contexts. Of the court actions already filed, many have resulted from deaths at nursing homes and other long-term care facilities across the country. The allegations in these lawsuits claim that the nursing homes did not adequately protect their residents, causing them to contract COVID-19 and die.   Other estates are filing wrongful death lawsuits against employers as their loved ones contracted COVID-19 at work. These lawsuits are seeking to break from the usual rule that workers' compensation is the exclusive remedy that employees and their families have when they are injured or killed on the job.   Some types of wrongful death lawsuits can be filed on behalf of families who lost a loved one after having gotten sick on a cruise ship or an airplane. In the case of the cruise ships, these lawsuits claim that operators did not prevent outbreaks on their ships and set sail when they knew that there was a spreading pandemic.  

What You Must Prove in a COVID-19 Wrongful Death Lawsuit

The standard of proof that you must meet in a COVID-19 wrongful death lawsuit depends on who you are suing. If you are suing anyone other than an employer, the standard of proof in these cases is the same as any other personal injury lawsuit. Here, you will need to show the following four elements:  

• The defendant owed you a duty of care.
• The defendant breached the duty of care by not acting as a reasonable person in their situation would act.
• There was an injury suffered.
• That injury would not have occurred but for the acts and omissions of the defendant.

However, you have a much higher standard of proof that you must meet when suing an employer. Since the presumption is that you should file a workers' compensation claim as opposed to a lawsuit, you will need to show more than plain negligence.   Pennsylvania does not allow for lawsuits against employers for gross negligence. However, there is still an opening under state law for you to sue an employer over a wrongful death from COVID-19.   Employers can be sued for intentional conduct. When you look closely at this standard, it is not too much different than gross negligence. An employer acting intentionally means that they acted with intentional disregard for the employee's health and safety. Nonetheless, this is something more than gross negligence.   It is still possible to meet this standard in the COVID-19 context. Many employers required their employees to work in the early days of the pandemic and did not provide them with any personal protective equipment. This continued even after employers learned of the dangers. Recklessness would seemingly be enough for an employee to be liable, and the news accounts describing the way that many companies acted could fit the description.   An employer could also be found liable for wrongful death for their failure to uphold their assumed duty to protect their employees. This is especially true if the deceased worked in a public-facing business such as a store that may have had customers infected with the virus.  

It Is Best If You Can File a Wrongful Death Lawsuit

If your loved one died on the job, you will want to find a way to file a wrongful death lawsuit against the employer as opposed to proceeding through the workers' compensation system. You will receive more money in a wrongful death jury award or settlement agreement than you would in a workers' compensation claim.   All workers' compensation would provide you with would be lost wages and medical costs. However, with an illness like COVID-19, some damages would not be covered by workers' compensation, such as pain and suffering. You would receive these in a wrongful death lawsuit. However, the standard of proof for wrongful death is much higher for plaintiffs to meet. As of mid-June, there were just 14 lawsuits filed in the country against employers for COVID-19 deaths. However, we can expect a lot more to follow as businesses reopen.  

Employers and Businesses Do Not Have Immunity From Lawsuits

Pennsylvania has issued an executive order that gives employers with front-line workers immunity for COVID-19 lawsuits, but this does not extend to facilities. Thus, nursing homes in the state can still be sued in wrongful death cases.   There is talk about granting a nationwide blanket immunity to businesses relating to COVID-19 lawsuits. This may be included in upcoming legislation that is being discussed in Congress. Some states have even passed their own laws giving immunity to businesses; although, Pennsylvania is not one of them.   Even if such legislation made its way into law, it's unclear if it would extinguish lawsuits that were brought before immunity was passed. Therefore, if you have a wrongful death lawsuit to file, you should contact an Allentown personal injury lawyer immediately in order to get the process started.  

Taking Action to Sue an Employer

Before the plaintiff even reaches the issue of the employer's conduct that led to their contracting COVID-19, they need to first prove that their loved one contracted COVID-19 on the job. This is not always the easiest thing to prove; although, there is contact tracing that can show where someone got COVID-19.   There will likely be more wrongful death lawsuits filed as the economy reopens and more businesses open their doors to the public. The spike in deaths after the state reopenings likely means that many workers contracted COVID-19 at work. While getting COVID-19 at work is not automatic grounds for the employer to be liable, there are certainly many stories of employers that recklessly exposed their workers and failed to take the minimum basic measures to protect them. Whether that is enough to be held liable remains to be seen.  

Wrongful Death Lawsuits Filed in Philadelphia

As far as COVID-related wrongful death lawsuits in Philadelphia, one family has taken legal action against a meatpacking plant. Many of these workers across the country have gotten sick because they work in tight quarters. However, the U.S. Chamber of Commerce has expressed concern that some employees would take advantage of the situation and file "frivolous lawsuits."   The family of the deceased worker has claimed that the company made social distancing impossible and forced workers to work in tight and crowded conditions. Specifically, they claim that the company's conduct was "negligent, reckless and outrageous." In addition, the lawsuit claims that the employer did not give their workers personal protective equipment and discouraged workers from taking sick leave. This means that there would have been sickened employees spreading the virus to their coworkers.  

The Importance of Legal Assistance

If you have lost a loved one to COVID-19 and think that someone else was responsible for their death, contact an Allentown personal injury lawyer at the firm of Metzger & Kleiner. Call us today at (610) 435-7400 for your free consultation.