Thursday, May 28, 2020

COVID-19, Public Nuisance, Wrongful Death, and Workers’ Compensation Exclusivity

A news reporter asked me today whether a public nuisance suit is barred by workers’ compensation exclusivity. It strikes me as a difficult question.

Obviously, one cannot sue one’s employer in negligence for physical injury or death because of the workers’ compensation exclusive remedy rule. Similarly, the next of kin of a decedent are barred by workers’ compensation exclusivity from suing the decedent’s employer in wrongful death. These principles are too well established to warrant extended discussion. You may change the law if you like and if you can, but you cannot really argue with what it says.

The tactic in recent public nuisance suits is, at least in part, to try to overcome workers’ compensation exclusivity by 1) suing in nuisance rather than negligence; and 2) seeking injunctive rather than compensatory relief. (Thus far, I have not located lines of prior cases on conflicts between nuisance law and workers’ compensation). Many of us are aware of cases involving various non-workers’ compensation laws in which workers’ compensation exclusivity was found to “trump” causes of action under those laws. (See 9 Larson's Workers' Compensation Law § 100.03). The typical situation involves plaintiffs seeking alternative kinds of damages for physical harm. I have a pretty firm conviction that any suit for damages related to physical harm filed by an employee against his/her employer will be found (somehow) subject to workers’ compensation exclusivity.

The injunction question seems much trickier. It appears to me doubtful that a plaintiff could successfully maintain a negligence or wrongful death action seeking an injunction but not damages. The prima facie elements of a negligence claim are, after all, duty, breach, causation, and harm/damages. The defense’s argument in a COVID-19 negligence action involving physical injury that does not seek recovery for harm/damages might simply be that, where there is no harm/damages, there is no prima facie negligence claim. And where there is no prima facie negligence claim, there is no possibility of obtaining an injunction, which, after all, depends for its issuance on the likelihood of success on the merits of an underlying negligence (or some other) claim. Injunctions in the air will not do.

What about a public nuisance suit? The plaintiff’s prima facie nuisance case might seem almost by definition not to involve monetary damages. Plaintiffs often primarily seek "abatement"—to stop the defendant from doing something that may harm the plaintiff (and others similarly situated). The plaintiff’s syllogism here might be: a) workers’ compensation is the exclusive remedy for tort/negligence damages only; b) public nuisance involves no tort damages, ergo c) workers’ compensation exclusivity does not apply, and the public nuisance suit is viable.

But wait a minute. Consider the Restatement Second of Torts explanation of public nuisance.

Under Section 821B:

(1) A public nuisance is an unreasonable interference with a right common to the general public.

(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

I think that if an employee attempted to obtain damages from her employer on a public nuisance theory (which, contrary to our earlier syllogism, the Restatement informs us is possible), the action would be barred under workers’ compensation exclusivity.

What about a public nuisance injunction

Under Section 821C:

(1) In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.

(2) In order to maintain a proceeding to enjoin [or] to abate a public nuisance, one must

(a) have the right to recover damages, as indicated in Subsection (1), or

(b) have authority as a public official or public agency to represent the state or a political subdivision in  the matter, or

(c) have standing to sue as a representative of the general public, as a citizen in a citizen's action or as a member of a class in a class action.

Under Comment b of the section: “The private individual can recover in tort for a public nuisance only if he has suffered harm of a different kind from that suffered by other persons exercising the same public right. It is not enough that he has suffered the same kind of harm or interference but to a greater extent or degree.”

Under Comment j: “A person who has suffered damages that are different from those suffered by other members of the public and who is thus able to bring an action in tort for his damage is able to seek an injunction against the public nuisance. It has been the traditional rule that if a member of the public has not suffered damages different in kind and cannot maintain a tort action for damages, he also has no standing to maintain an action for an injunction.”

I think this leads me to the (provisional) realization that an employee could probably not obtain an injunction unless the employee could also sue for “harm of a kind different from that suffered by other members of the public . . .” But that different harm would probably be contraction of COVID-19 (or risk thereof), which seems, however the harm is quantified, to lead back to damages and therefore back to exclusivity. Thus, by this circuitous route my suspicion is that a court might conclude an action by an employee for public nuisance injunctive relief is barred by exclusivity: it is ultimately derivative of a right to obtain tort damages, and therefore encompassed by exclusivity. On the other hand, any non-employee seeking relief would obviously not be barred by exclusivity, but would have to deal with the formidable standing requirements built into 821C(1) as fleshed out in Comments b and j: how is the plaintiff’s harm different from that suffered by other members of the public? See Alaska Native Class v. Exxon Corp. (In re Exxon Valdez), 104 F.3d 1196 (9th Cir. Alaska 1997).

Michael C. Duff

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