The Storm that Never Arrived – An Update on Civil Litigation and COVID-19

January 2023

Robert J. Schwarz

On January 30, 2019, only four short years ago, viral videos of pots of boiling water being tossed into the air and freezing instantly were all the rage as temperatures hit record lows and the “polar vortex” brought life to a halt in northern Illinois. Less than one year later, the COVID-19 virus emerged and brought the entire world to a standstill. The massive impact of the ensuing global pandemic on our society will undoubtedly be felt and debated for many years to come.

As we continue to emerge into this new, post-pandemic world, the courts have begun grappling in earnest with sporadic litigation issues brought about by the ubiquitous virus. Workplace COVID-19 lawsuits include not only employees or contractors alleging they contracted the virus while working at their job site, but also, on rare occasions, so-called “take home” cases. “Take home” COVID-19 cases allege they were infected by a household member that contracted the virus at work.

Workplace COVID-19 lawsuits typically allege that the employer was negligent and failed to provide a safe working environment for its employees, thereby causing injury to an employee from a COVID-19 infection. While the exclusivity provisions of the Illinois Workers Compensation Act (the “Act”) bar the employee from seeking damages outside of the Act, no such prohibition directly applies to the non-employee plaintiff. It is also noted that third-party complaints can be expected to be filed by an employer’s subcontractor or vendor that is being sued by employee.

To prevail in a negligence lawsuit, a plaintiff must prove: 1) the existence of a duty owed by the defendant to the plaintiff; 2) a breach of that duty; 3) an injury proximately resulting from the breach and 4) damages resulting from the injury. Plaintiffs alleging negligence for workplace COVID-19 infections can expect a vigorous defense as to each prong. We will focus here on the duty owed and proximate cause prongs.

Does an employer/subcontractor owe a duty to protect the plaintiff from COVID-19?

As of this writing, the question of whether a duty is owed to an employee, or a non-employee, has not been presented above the trial court level. However, two Illinois trial judges have issued rulings analyzing the duty issue in response to employer/subcontractor motions to dismiss. It should come as no surprise that the two rulings reach contradictory conclusions.

A wrongful death action was brought in the matter of Linda Wantuch and First Midwest Bank as Co-Independent Executors for the Estate of Ronald Wantuch v. Burling Builders, Inc., et al., Cook County Case No. 21-L-000061 after an employee working at the Great Lakes Coca-Cola Bottling facility in Niles, Illinois allegedly contracted COVID-19 while working in the facility and subsequently passed away from the infection. Ten subcontractors that were performing work at the facility in April 2020 were sued by the decedent’s estate.

The lawsuit alleges that each subcontractor owed the decedent a duty to exercise reasonable care to maintain a safe and healthy workplace environment and, in particular, to protect their employees and employees of Great Lakes within the facility from contracting COVID-19 when they knew or should have known that individuals at Great Lakes were at high risk of infection and exposure due to the high volume of individuals present at and circulating throughout the facility. The decedent’s estate also filed a workers compensation claim against Great Lakes. Recently, third-party complaints have been filed against Great Lakes by some of the subcontractors alleging negligence in providing and maintaining a safe workplace for the decedent.

In denying the defendants’ motions to dismiss, Judge Gerald Cleary of Cook County found the subcontractors owed the duty of ordinary care that is owed by every person to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of that person’s actions. Judge Cleary’s ruling was somewhat tempered by his finding that the unique challenges of COVID-19 and the rapidly evolving timeline of events surrounding the pandemic’s onset, requires an independent, case specific analysis of a defendant’s duty to act in a reasonable manner.

In contrast to the Wantuch case, Judge Mark A. Pheanis of Kane County refused to impose a duty upon an employer to guard against its employees spreading COVID-19 to the population at large. Erika Iniguez, as Ind. Adm. of the Estate of Esperanza Ugalde, Deceased v. Aurora Packing Company, Inc., Kane County Case No. 2020 L 000372. In this case, the decedent allegedly contracted COVID-19 from her husband who was employed by Aurora Packing Company. The complaint alleged that Aurora Packing’s failure to maintain a safe workplace for its employees led to Mr. Ugalde’s infection and he subsequently passed the virus to the decedent which in turn caused her death.

Under Illinois law, the starting point of a duty analysis is to determine whether a plaintiff and a defendant have a special relationship that gives rise to a duty of reasonable care. The relationship between a business and its invitee or the relationship between a manufacturer and a consumer of its goods are such special relationships. In addition, four factors should be considered when determining if a defendant owes a duty to a plaintiff: 1) the reasonable foreseeability of injury; 2) the likelihood of injury; 3) the magnitude of the burden of guarding against the injury; and 4) the consequences of placing the burden upon the defendant.

In granting the defendant’s motion to dismiss the complaint, Judge Pheanis found that the decedent stood in no special relationship to Aurora Packing. He then conducted the four factor analysis and ruled that both the magnitude of guarding against the burden of employees spreading COVID-19 as well as the consequences of placing that burden on the employer did not necessitate placing a duty on an employer to guard against its employees spreading COVID-19 to the population at large.

Can the Plaintiff prove causation?

Assuming a court determines that a duty does exist and was breached in a workplace case involving COVID-19, the plaintiff still must prove by a preponderance of the evidence, that the employer or subcontractor’s negligent act or omission was a substantial factor in bringing about the plaintiff’s infection with the virus.

In 2020, the Illinois Legislature amended the Workers’ Occupational Disease Act to provide a rebuttable presumption which allowed COVID-19 first responders and essential front-line workers diagnosed with COVID-19 between March 9, 2020 and June 30, 2021 to argue their diagnoses were automatically connected to the hazards or exposures of their employment. This presumption has never applied to personal injury or wrongful death claims.

It has been scientifically established that an individual infected with COVID-19 is able to spread it to other individuals while remaining asymptomatic. Arguably, every human being that a plaintiff encounters in the two weeks prior to his or her infection could be the source of a COVID-19 infection. Likewise, no court has reached the issue of whether there is a generally acceptable scientific methodology available to prove where or how an individual contracts COVID-19 or methodology available to rule out other sources of exposure (including asymptomatic exposure). As it stands now, there are many unresolved issues as to whether a plaintiff could ever possibly meet his or her burden regarding proximate cause.

Looking forward

COVID-19 continues to evolve and develop new variations in an effort to evade eradication. In the early months of the pandemic, many speculated that an avalanche of lawsuits seeking damages for failing to protect against the virus was looming on the horizon.

The anticipated storm never materialized. Many states outside Illinois have blocking statutes to prevent such lawsuits. In Illinois, the perceived difficulties in being able to pinpoint the cause of a given infection may be playing a part in the smaller than expected number of cases that have been filed. That being said, it should be expected that as long as COVID-19 remains a significant public health issue, litigation regarding it will continue to be brought forth.