II. General Negligence Law
COVID-19 negligence claims will be subject to the four elements of all negligence claims: duty, breach, causation, and damages. First and foremost in every negligence claim is a duty analysis, with the courts determining whether the alleged facts and the relationship between the parties create a duty of reasonable care. Duty can be broadly described as “the standard established by law for the protection of others against unreasonable risk of harm.” In other words, a court’s duty analysis will consider the “standard of care,” or what the law holds to be the appropriate conduct for individuals in the factual circumstances at issue. “The concept of duty in negligence cases is very involved, complex and indeed nebulous,” and the COVID-19 pandemic presents a novel circumstance for duty analysis.
Of course, the standard of care varies based upon the relationship between the parties and the circumstances underlying the alleged negligence. Generally, negligence claims rely upon the “reasonable person” standard of care, which considers an individual’s conduct relative to that of a reasonable person under similar circumstances. This standard is extremely malleable, taking into consideration not only the factual circumstances facing the parties, but also the relevant knowledge, experience, and capabilities of the parties.  For example, the standard of care for physicians, nurses, and other medical care providers is that of a reasonable medical care provider within their particular specialty. Thus, medical care providers are held to the standard of being a reasonable person, but that standard is considered in terms of their specialized knowledge, training, and experience. Moreover, many private institutions -- hospitals, long-term care facilities, and medical groups, for example – may face vicarious liability for the actions of their employees, with the institution’s duty analyzed based on the standard of care for its allegedly negligent employees.
For medical care providers and their employers, COVID-19 negligence claims will more than likely come in three forms: malpractice, traditional negligence, and premises liability. Malpractice cases will be the most familiar to pre-pandemic litigation, considering whether medical professionals conformed to the appropriate medical standard in providing care to patients. The novelty of COVID-19 presents a double-edged sword for malpractice claims because the uniqueness of the illness and limited experience treating it leave the standard of medical care somewhat unclear, which perhaps gives medical providers more leeway while at the same time exposing them to more uncertainty and liability. Early COVID-19 malpractice litigation will likely focus on whether infectious disease treatment methods and protocols were met, with consideration given to the guidelines of the CDC and state health agencies. These safety protocols and guidelines may also form the basis for more traditional negligence claims against medical providers and their employers based on failure to adequately prevent the spread of COVID-19 within their facilities. Long-term care facilities are particularly susceptible to this type of claim, as their residents are especially vulnerable and may require extensive physical care.
Medical institutions also face the possibility of premises liability claims for exposing others within the general population to COVID-19. The duty of premises owners to individuals on their property varies. For patients, their families, and others invited onto the property for business purposes, the premises owner owes a duty of reasonable care to protect them from reasonably foreseeable and dangerous conditions. Plaintiffs’ attorneys will likely allege that these medical institutions were aware of the risk of the spread of COVID-19, yet failed to institute appropriate safety protocols to reasonably protect patients and their families from this risk. As with traditional negligence claims, the defense to this type of claim may focus on government guidelines and infectious disease protocols.
Premises liability claims are really a risk for any business that remains open and invites patrons onto its premises during the COVID-19 pandemic, whether it is a non-essential retail store or a business, such as a grocery store that local governments have deemed essential. The type of business will likely dictate the standard of care, with more medically sophisticated businesses held to a higher standard of care. However, putting aside the standard of care issue, a premises liability claim against a business in which someone only spent a matter of minutes will face major causation hurdles, and that issue alone will likely limit the number of claims against non-medical premises owners.
Different product manufacturers, from manufacturers of personal protective equipment (PPE) and ventilators to pharmaceutical companies, potentially face products liability claims based on negligence and strict liability theories as a result of the COVID-19 pandemic. Products liability claims based on negligence require the plaintiff to show that the defendant manufacturer made an unreasonably dangerous product, either based on the defective design of the product or based on a failure to adequately warn about the dangers of the product. This standard, however, assumes that product manufacturers have ample time to test their products and develop any necessary, appropriate warnings of risks associated with their products. In the face of a novel virus that is already wreaking havoc on society, manufacturers are burdened with the urgency of developing their products quickly while at the same time reducing their potential liability for those products. Plaintiff’s attorneys may attempt to use the novelty of COVID-19 to their advantage, arguing that PPE, medical device, and pharmaceutical manufacturers provided products which were not adequately tested for use relative to COVID-19, making the products unreasonably dangerous. However, PPE, medical device, and pharmaceutical manufacturers design their products to comply with extensive government and industry safety and testing standards to ensure consumer safety. While the rapid emergence of COVID-19 prevented many of these manufacturers from completing COVID-19 specific testing and analysis, this exacting level of testing would likely not be necessary, as government standards from the FDA, NIOSH, OSHA, and other federal and state agencies serve to establish that these products are reasonably safe for their intended use during the COVID-19 pandemic. Thus, these types of cases might be more limited to specific product failures – for example, a ventilator that failed and caused a specific patient to become more severely ill or die.
Ultimately, those facing the specter of potential litigation relative to the COVID-19 pandemic must consider the relevant standards of care and types of claims they may face. Part of this consideration will involve the impact that extreme and unusual circumstances may have on the standard of care.
III. Standard of Care in Exigent Circumstances
The COVID-19 pandemic is unique and unprecedented in the scope of its impact, affecting nearly every facet of our society. This raises a question: is it fair to apply traditional standard of care concepts to a never-before-seen set of circumstances? The law generally recognizes that not every risk can be mitigated or controlled and that an injury may occur without negligence or a violation of the standard of care. Emergency and exigent circumstances are relevant when considering standard of care relative to an allegation of negligence, especially when those unusual circumstances come as a result of a natural condition or event. Nevertheless, the standard of care under common law is not modified for emergencies; rather, the existence of emergency circumstances is relevant in assessing what the standard of care requires. In short, exigent circumstances do not modify the standard of care but adapt the standard to that of a reasonable person facing a similar emergency.
Unsurprisingly, the effect of national public health emergencies on the standard of care is not a frequently considered phenomenon in American jurisprudence. However, one can look to recent historical events, legislation, and regulations for insight into how the exigent circumstances of COVID-19 will impact negligence litigation. The 2005 Hurricane Katrina disaster provides some perspective for medical professionals and institutions. Hurricane Katrina resulted in flooding and a loss of power at many hospitals and long-term care facilities in the New Orleans area. Post-hurricane negligence litigation involved claims that physicians and medical facilities did not do enough to prepare for the hurricane, resulting in the injury and death of patients. Louisiana courts considered the conduct of medical professionals and their employers according to the standard of a reasonable medical professional providing patient care during a similar natural disaster situation. This standard of care reflected the circumstances faced by medical care providers during the crisis created by Hurricane Katrina. Following Hurricane Katrina, many states enacted “crisis standard of care” (“CSC”) legislation and regulations, setting forth guidelines for providing care and rationing resources in emergent circumstances. However, while the U.S. Department of Health and Human Services offers CSC guidelines and provides data obtained from numerous studies on crisis care, there is no national CSC standard because formal adoption of CSC guidelines depends upon state legislatures and agencies, resulting in variability in CSC protocols from state-to-state. Ultimately, CSC guidelines will likely be relevant in future COVID-19 litigation involving medical professionals and their employers, but whether these guidelines are determinative of the standard of care will depend upon individual states legislatures, agencies, and how courts interpret these guidelines.
Premises owners may also face negligence per se claims. Negligence per se arises when a state legislature enacts law defining a particular standard of care or, more uncommonly, the courts adopt an agency’s standards as the standard of care. The impact of negligence per se varies by state, with differing courts finding that it creates a presumption of negligence, a rebuttable presumption of negligence, or just evidence of negligence for consideration by a jury. COVID-19 plaintiffs may allege that ignoring state-imposed “shelter-in-place” orders and “social distancing” guidelines establishes negligence per se against premises owners, as these orders often mandate or recommend the temporary closing of “non-essential” businesses. However, this argument faces a major constitutional hurdle, as these types of orders are typically issued by state executive branches under their police powers. As the executive branch is generally constitutionally prohibited from creating law, “shelter-in-place” orders and “social distancing” guidelines will not likely serve as a basis for negligence per se claims.
For products liability claims relative to COVID-19, the applicable standard of care will vary drastically from state-to-state. For example, Michigan has no strict liability statute, recognizes compliance with industry standards as evidence of reasonable conduct, and maintains a rebuttable presumption of non-liability for compliance with government safety regulations. A manufacturer defending against a COVID-19 claim in Michigan would have much stronger defenses than one facing a similar claim in nearby Illinois, Indiana, or Ohio, which do not have such business-friendly legislation. Appreciating the variability in state law, most states recognize that government regulations and industry standards are at least relevant in the consideration of products liability claims. For manufacturers of PPE, compliance with government regulations for safety equipment and private industry standards will be valuable in establishing that the PPE was reasonably safe for use according to widely recognized standards. For medication and medical equipment manufacturers, compliance with FDA regulations and approval via the FDA-mandated process will be central to any defense. As the United States government works to combat the COVID-19 pandemic, the FDA has relaxed many of its rules regarding manufacturing and testing to fast-track the development of anti-viral medication and manufacture of life saving equipment. With ventilators, for example, the FDA temporarily altered its rules regarding modifications, areas of use, and shelf life to ensure medical facilities have a sufficient supply of ventilators for patient needs. These changes adapting FDA rules and guidelines to the COVID-19 pandemic will be relevant to the defense of device manufactures in post-pandemic litigation.
After the COVID-19 pandemic is resolved, at least for the time being, some states may turn to tort reform to prevent a deluge of potential negligence litigation. Tort reform can take on many forms, including limitations of liability, statutory alterations to the standard of care, and damages caps. No states have yet proposed tort reform legislation relative to COVID-19. However, should the COVID-19 pandemic lead to an onslaught of litigation, tort reform measures will likely follow, almost certainly in traditionally conservative jurisdictions and perhaps in others, given the unique and urgent circumstances presented by the pandemic.
IV. Defending the “Standard of Care” Element in Future COVID-19 Negligence Claims
COVID-19 negligence claims will present a variety of defenses, not the least of which will be causation, as in many circumstances it will prove challenging for plaintiffs to definitively establish the source of their COVID-19 infections. Causation will likely be the primary defense in many cases, though there will also be cases (involving cruise ships, long-term care facilities, for example) where the source of the infection can be confidently isolated to a location.
Attorneys defending COVID-19 negligence claims should consider the appropriate standard of care for the court and the jury to apply to their clients. Central to this defense is a thorough understanding of jurisdictional CSC legislation and regulations, any emergency standards issued in response to the pandemic, government and industry standards for medical and PPE products, and any general or specific tort reform measures that apply to the claims. Further, attorneys must impress upon the fact finders in their cases that their clients acted as reasonable persons would have under the stressful, exigent, unfamiliar and time-sensitive circumstances presented by the COVID-19 pandemic. In a situation where there is no playbook or precedent such as this, judges and jurors will hopefully be sympathetic to the dilemmas faced by prospective defendants in COVID-19 negligence claims and the judgment calls they needed to make under extremely difficult conditions. Attorneys defending COVID-19 cases must be prepared to hammer home this point throughout the case and at trial and should ensure that jury instructions frame the standard of care element in the context of the extreme circumstances under which their clients operated.
While COVID-19 negligence claims are inevitable, the COVID-19 pandemic need not become a litigation pandemic. Attorneys defending COvID-19 negligence defendants will have several potential defenses available, including an argument that the applicable standard of care must take into consideration the unique circumstances presented by the pandemic. Many state legislatures will hopefully enact tort reform measures to limit the scope, extent and potential liability of prospective defendants in COVID-19 negligence cases. Even without tort reform measures, these cases will be very defensible and will involve sympathetic parties on both sides of the caption.
 Restatement (Second) of Torts § 281 (1965).
 Restatement (Second) of Torts § 328B (1965).
 Restatement (Second) of Torts § 282 (1965).
 Mieher v. Brown, 54 Ill. 2d 539, 545, 301 N.E.2d 307, 310 (1973)
 Restatement (Second) of Torts § 283 (1965).
 Restatement (Second) of Torts §§ 283, cmt. c-d; 289, 290 (1965).
 Restatement (Second) of Torts § 289, cmt. m, illus. 12, 14 (1965)
 Restatement (Second) of Torts § 877 (1979)
 See generally Information for Healthcare Professionals, Center for Disease Control: Coronavirus Disease 2019 (COVID-19) (March 20, 2020) (https://www.cdc.gov/coronavirus/2019-nCoV/hcp/index.html).
 See generally Restatement (Second) of Torts Ch. 13.
 Restatement (Second) of Torts § 343, 343A (1965).
 Restatement (Second) of Torts § 388 (1965)
 Restatement (Second) of Torts § 282, cmt. e (1965).
 See generally Restatement (Second) of Torts § 296, cmt. a (1965) (Recognizing that emergency circumstances impact standard of care analysis); see also Wilson v. Sibert, 535 P.2d 1034, 1036-37 (1975); see also Bolick v. Sunbird Airlines, Inc., 96 N.C.App. 443, 449 (1989).
 See Restatement (Second) of Torts § 296, cmt. a (1965)
 LaCoste v. Pendleton Methodist Hosp., L.L.C., 947 So.2d 150, 155 (4th Cir. LA, 2006) (Rev’d on other grounds).
 Stewart, I. & Jonas, B., Employing Crisis Standards of Care in Response to the COVID-19 Pandemic, The National Law Review (March 20, 2020) (https://www.natlawreview.com/article/employing-crisis-standards-care-response-to-covid-19-pandemic)
 Topic Collection: Crisis Standards of Care, U.S. Department of Health and Human Services: TRACIE Healthcare Emergency Preparedness Information Gateway (March 26, 2020) https://asprtracie.hhs.gov/technical-resources/63/crisis-standards-of-care/0#guidelines-and-strategies
 See generally Restatement (Second) of Torts § 288B (1965).
 See generally Restatement (Second) of Torts § 288B (1965).
 MCL § 600.2946, 2947.
 Coronavirus (COVID-19) Update: FDA Continues to Facilitate Access to Crucial Medical Products, Including Ventilators, U.S. Food & Drug Administration (March 22, 2020) (https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-continues-facilitate-access-crucial-medical-products-including)